Goldman v. Ætna Insurance

Jenkins, P. J. 1. “ An insurance company, which receives in due time papers submitted to it in good faith as proofs of loss, should within a reasonable time, if the same are unsatisfactory, direct the attention of the party presenting such papers to any defects which it claims exist therein; and where a company, without doing this or pointing out tlie alleged defects, retains the papers so submitted until they are, under a notice to produce, brought into court by it on the trial of an action upon the policy, the company will be held to have waived any objection to the sufficiency of such papers as proper proofs of loss.” Alston v. Phenix Insurance Co., 100 Ga. 287 (2) (27 S. E. 981). Aliter where the required proof of loss as rendered to the insurance company is not merely deficient or defective, as failing to fully comply with the duties and obligations of the assured with reference to making and forwarding the same, but where the proof as rendered affirmatively shows on its [716] face that the company is not liable under the terms of risk assumed. Gannon v. Phoenix Insurance Co., 110 Ga. 563 (2) (35 S. E. 775, 78 Am. St. E. 124). Decided September 13, 1923. 2. The fact that to a petition, which, as amended without objection, alleges full and specific compliance with all the terms of the “ iron-safe clause,” there was attached a copy of a timely presented proof of loss, showing a computation of the damages claimed, based upon an inventory made the day before the fire, as taken in connection with one made immediately subsequent thereto, does not indicate that no inventory was “ taken within 12 months prior to date ” of the policy, or “ within 30 days ” after its issuance, as required by the terms of the “ iron-safe clause ” contained in the policy. It was therefore error for the trial judge to dismiss the petition on the ground urged, and as stated in his order, “ that the sworn proofs of loss submitted by the insured shows prima facie that no inventory was taken within twelve months prior to or within thirty days after the issuance of the policy of insurance sued upon,” and that consequently no cause of action was set forth. ■Judgment reversed. Stephens and Bell, JJ:, concur. L. D. McGregor, for plaintiff. Smith, Hammond & Smith, M. L. Felts, for defendant.