18 Ga. App. 192 | Ga. Ct. App. | 1916
The insurance policy sued upon contained, among others, the following stipulations: (1) “This entire policy, unless •otherwise provided by agreement endorsed hereon or added hereto, shall be void . . if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.” .(2) “This policy is made and accepted subject to the stipulations and conditions printed on the back hereof, which are'hereby especially referred to and made a part of this policy, together with such other provisions, agreements, or conditions as may be endorsed hereon or added hereto; and no officer, agent or other representative of this company shall have the power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto; and as to such provisions.and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.” .(3) “If this policy shall be cancelled as hereinbefore provided, or become void, or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy.”
The plaintiff’s petition showed that the building insured had been continuously vacant for more than ten days prior to the date of the fire, and that it was vacant at the time of the fire, and that no permission had been given therefor by the insurance company, as required by the terms of the policy. The plaintiff, in his petition, contended that the insurance company had waived its right to rely upon this as a breach of the policy, and could not set
Although the policy in this case provided that the unearned premium would be returned upon the surrender of the policy, if the policy became void, the petition discloses the fact that the policy was not surrendered, but was sued upon;
Under the stipulations contained in the contract of insurance, there was no error in the dismissal of the petition on demurrer.
Judgment affirmed.