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Action on insurance policy. Before Judge Baldwin. Macon City Court. June 7, 1955.
The petition failed to set forth a cause of action against the defendant, and the trial judge did not err in sustaining the general demurrer.
On November 20, 1948, Shirley Cooper was injured when she was struck by a truck owned by the Cochran Oil Company, at the time and place of the injury being driven with the permission of the owner by Raymond Purser for his use and the use of Lewis Purser. Suit was brought against Raymond Purser and Lewis Purser and a judgment was obtained against them in the sum of $7,500. This judgment is the basis of the present action brought by Shirley Cooper, through her father as next friend against the Glens Falls Indemnity Company. In addition to the above it is alleged that the defendant had, prior to the injury sustained by the plaintiff, issued a liability insurance policy to the Cochran Oil Company, a copy of which was attached to the petition and which included a clause that the contract of insurance covered any person using the automobile with the permission of the owner. The insurance policy included a provision that, before any action would lie against the insurance company, the insured must have complied with all the provisions of the policy. The petition alleged that the insured had complied with all the provisions of the policy, except for the reasons thereinafter set forth they did not forward to the insurance company the petition and process served upon them in the action in which the judgment for $7,500 was obtained against Raymond Purer and Lewis Purser. The reason thereinafter set forth as to why the petition and process was not forwarded to the insurance company was that an insurance adjuster sent by the insurance company to investigate the collision in which the plaintiff was injured orally informed the "Pursers" that the insurance company was in complete charge of the matter, that the said "Pursers" had nothing to worry about in connection with the injury and that they need not further concern themselves about the matter. It was further alleged that the exact time of the conversation referred to above was not known, but that it was after the accident and before the suit was brought by the plaintiff. Judgment in the sum of $7,500 was prayed for. The defendant filed general demurrers to the petition as finally amended which were sustained by the trial court and it is to this judgment that the plaintiff excepts.
The defendant insurance company, in support of its general demurrer that the petition did not set forth a cause of action against it, argues that the policy contained a provision that all of the conditions precedent must have been complied with before an action would lie against it, and that the petition shows on its face that the provision that, "If claim is made or suit is brought against the insured, the insured shall immediately for ward to the company every demand, notice, summons or other process received by him or his representative," was not complied with. The plaintiff contends that the statement of the adjuster quoted in the petition amounted to a waiver of the provision of the policy quoted above. Accordingly, the question here for decision is whether or not a claims adjuster for an insurance company by making the statement to the insured that "It [the insurance company] was in complete charge of the matter, that the said Pursers had nothing to worry about in connection with the injury and that they need not further concern themselves about the matter," would waive a requirement in the policy of insurance that all notices of suits, etc., be forwarded to the company immediately upon the receipt of same by the insured.
This court and the Supreme Court has on many occasions held that by a refusal to pay a claim on an insurance policy an insurance company thereby waives the necessity for compliance with the preliminary conditions of the policy. German-American Ins. Co. v. Davidson, 67 Ga. 11; Merchants' & Mechanics' Ins. Co. v. Vining & Bro., 68 Ga. 197, 199; New Zealand Fire Ins. Co. v. Brewer, 29 Ga. App. 773, 775 (116 S. E. 922), and cases cited. Code 56-831. These courts have just as consistently held that compliance with policy provisions with respect to notice and proof of loss are conditions precedent to recovery. Graham v. Niagara Fire Ins. C., 106 Ga 840 (32 S. E. 579); Metropolitan Life Ins. Co. v. Fields, 53 Ga. App. 76 (184 S. E. 752), and cases cited.
Although, as set forth above, an adjuster can by his actions, in some cases waive the necessity for an insured to comply with certain conditions precedent to an action against the insurance company, none of these cases apply to the case here before the court. Construing the statement in the pleadings most strongly against the pleader, as must be done on demurrer, the statement attributed to the adjuster was nothing more than a few words of assurance that they (the Pursers) were covered by liability insurance, and that should any action be instigated against them the insurance company would defend such action under the provisions of the policy. The pleadings show that the provisions of the policy which must be complied with before an action can be brought against the insurance company were not complied with, and therefore, the trial court did not err in sustaining the general demurrer to the petition on the ground that the petition did not set forth a cause of action against the defendant.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.
Jones, Sparks, Benton & Cork, contra.
J. Millard Jackson, S. Gus Jones, Neal D. McKenney, for plaintiff in error.
Saturday May 23 02:52 EDT

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