101 Ga. 716 | Ga. | 1897
On May 8, 1893, a three-year policy of insurance was issued by the defendant in error to the plaintiff in error, upon a dwelling-house, furniture, etc., therein. On June 27, 1893, the insured property was destroyed by fire, and on September 12, 1893, suit was brought upon the policy. The amount of the policy sued on was $500.00 upon the dwelling house and $150.00 on furniture and other personalty. The defendant below pleaded, among other things, that the suit was prematurely brought; for that proofs of loss under the policy were not filed until September 7, 1893; that by the conditions of the policy, the defendant had until November 6, 1893, within which to pay the' loss claimed, and the suit was brought on September 12, 1893; and that said proofs of loss were not waived. Further, that the policy was fraudulently obtained by plaintiff representing to the agent of the defend
In the case of Mobile Fire Insurance Co. v. Miller, 58 Ga. 420, it was held that a misstatement in an application for insurance must in some way change the nature, extent or character of the risk in order to void the policy.; and Chief Justice Warner, in delivering the opinion of the court in that case, after citing the section of the code first above quoted, said, “That is to say, any variation by which the nature, or extent, or character of the risk is changed, will constitute a breach of that covenant, and will void the policy. It is not any and every variation from the representations contained in the application, that will constitute a breach of the covenant of warranty and void the policy. The variation must be such as to change the nature, or extent, or character of the risk, in order to void the policy. If the insured should state in his application for a fire-policy, in answer to the question as to what was his age, that he was thirty years old, when in fact he was thirty-one, it would be a
According to the terms of the policy now under consideration, and under the law of this State, the amount of the loss of the plaintiff was open to judicial inquiry. It was incumbent upon him to prove the amount of his loss; and hence the sections of the code hereinabove referred to would apply. It would be otherwise if this -were a “valued” policy, in which the sum to be paid as an indemnity in case of loss was fixed by the terms of the contract and by the law to be paid at all events and without reference to the real value of the property alleged to have been destroyed. In such a case, such overvaluation would raise a presumption of fraud upon the part of the applicant and would be a proper matter of substantive defense. See May on Insurance, § 30 et seq. From the foregoing, it is quite clear that the circuit judge erred in refusing to strike, upon demurrer, this part of the defendant’s plea.
Judgment reversed.