57 Ga. App. 90 | Ga. Ct. App. | 1937
Lead Opinion
This is tbe seventh appearance of this case in this court. For previous rulings see 38 Ga. App. 276 (143 S. E. 623); 43 Ga. App. 393 (156 S. E. 305); 45 Ga. App. 33 (163 S. E. 321); 48 Ga. App. 571 (173 S. E. 492); 51 Ga. App. 299 (180 S. E. 238); 53 Ga. App. 682 (186 S. E. 852). The present ease was a suit on the policy of fire insurance, and exceptions
It is well to consider first whether the facts pleaded effected a toll' of the statute of limitations as fixed either by the policy or the law of this State. As was stated in Atlas Assurance Co. v. Williams, 158 Ga. 421 (123 S. E. 697), a provision in a fire-insurance policy for the appointment of appraisers to determine the amount of the loss in the event of a disagreement does not constitute a condition precedent to recovery on the part of the insured, where the insurer takes no steps to require an appraisal and does not appoint an appraiser. The converse of this would seem to be true; and where appraisers have been demanded in terms of the policy, a compliance with the terms is a condition precedent. The present policy provides that “Loss shall not become payable until sixty days after . . award by appraisers when appraisal has been required.” In Insurance Company of North America v. Folds, 35 Ga. App. 720 (3) (135 S. E. 107), it was said: “Where a policy of insurance provides that no action thereon shall be maintainable unless commenced within twelve months next after the happening of the loss, and the parties enter into such an agreement fox the appraisal of the loss, the agreement to thus adjust their differences tolls the limitation provided in the contract, and the period of limitation does not run during the pen
It was proper to bring the suit on the award as made on May 30, 1925. Until such award was judicially determined to be a void award, we think the insured had no right to proceed on the policy itself, without reference to the award, as the damage sued for must be that fixed by the award. It seems to us that where the insurer has made a demand for an appraisal and award, to which demand the insured acceded, and then, through no fault on the part of the insured, the appraisers made an incorrect, improper award under the terms of the policy by not stating the sound value of the property, that the insured had a right to rely on the award as made until it was declared void, and not until such time was the statute of limitations, as fixed by the policy or by statute, in effect against him. See, in this connection, National Fire Insurance Co. v. Lam, 34 Ga. App. 246 (129 S. E. 116); 7 Couch on Insurance Law, § 1606. An examination of the former decisions of this court and the records therein in this case discloses that while the suit as originally filed contained a count based on the policy alone, without respect to the award made by the appraisers, upon the first trial the court instructed the jury that there could be no recovery upon this count. Afterwards, in May, 1932, the plaintiff voluntarily struck this count from the petition, and proceeded on the count making the award the measure of damage. If the award was valid, this action by the court was proper, for a suit except upon the award was not maintainable. It was said in this same case, in 45 Ga. App. 33, 43 (163 S. E. 321) : “Upon the first trial the plaintiff introduced evidence in support of the first count of the petition, which sought a recovery without reference to
The remaining headnotes will not be elaborated. Hpon con- - sideration of the motion for rehearing the original judgment of affirmance is adhered to, and this opinion is substituted for that originally written.
Dissenting Opinion
dissenting from the judgment on main bill of exceptions. This case was brought here on a direct bill of exceptions to the overruling of the demurrers, general and special, to the petition. This is the seventh appearance of the case in this court; and the history of the previous trials and holdings was so well set forth by Jenkins, P. J., in 53 Ga. App. 682 (supra), that I deem it unnecessary to again relate it. In that decision this court held that the original suit in the municipal court of Atlanta, brought on an award under the policy by an appraiser and umpire, was properly nonsuited. Subsequently the present action was filed in the superior court of Fulton County, and was a suit on the policy of fire insurance — the identical policy heretofore involved in the litigation, and the plaintiff sought recovery of the same loss and damage that was sought in the former suit. The defendant interposed the following grounds of general demurrer: "1. Defendant demurs generally to plaintiff’s petition, on the ground that same sets forth no cause of action. 2. On the ground that it affirmatively appears that said suit is barred by the contractual limitation of one year, contained in the policy of insurance sued on, which provides in substance that no suit or action on said policy shall be sustainable unless commenced within twelve months next after the fire. 3. On the ground that it affirmatively appears that said suit is barred by the statute of limitations applicable to written contracts. 4. On the ground that it affirmatively appears that said petition is a renewal of a former suit filed in the municipal court of Atlanta, which former suit was nonsuited, and it fails to appear that the accrued costs in said former suit have been paid by the plaintiff or that an affidavit in forma pauperis has been filed with'the present suit, as required by law.” All of the general, and certain special, grounds of the demurrer were overruled, and the defendant excepted.
Counsel for defendant in error contends that this suit is not a renewal of the former one which was nonsuited. If this be true, then the present action is barred by the statute of limitations, since the petition shows on its face'that this suit was