Pennsylvania Fire Insurance v. Sorrells

98 S.E. 358, 23 Ga. App. 398, 1919 Ga. App. LEXIS 139

• Court: Court of Appeals of Georgia
• Decided: February 11, 1919
• Docket: 9815
• Status: Published

Opinion

Broyles, P. J.

1. “Where the proposal to insure comes from the insurer, he must be notified of the acceptance of the offer by the insured.” Cooley’s Briefs on the Law of Insurance, §§ 423, 424, 432.

2. “While a contract can be made by correspondence through the. mail, or by telegram, the offer of the seller must be accepted by the purchaser unequivocally, unconditionally, and without variance of any sort. There must be a mutual assent of the parties, and they must assent to the same thing in the same sense.” Robinson v. Weller, 81 Ga. 704 (8 S. E. 447) ; Stix v. Roulston, 88 Ga. 748 (15 S. E. 826) ; Harris v. Amoskeag Lumber Co., 97 Ga. 465 (25 S. E. 519) ; Larned v. Wentworth, 114 Ga. 209 (39 S. E. 855) ; Harper v. Ginners Mutual Insurance Co., 6 Ga. App. 139, 142 (64 S. E. 567).

3. Where the holder of a fire-insurance policy receives from the insurer a letter notifying him that the policy has expired, but that it has been renewed on certain terms and conditions stated' in the letter, and he fails to answer the letter, or to comply with the terms and conditions stated therein, or to notify' the insurer that he has unconditionally accepted the policy, before the property has been destroyed by fire, there is no completed contract of insurance, but merely an offer by the insurer to make such a contract, not accepted by the insured. Harper v. Ginners Mutual Insurance Co., supra.

4. When the principles of law stated above are applied to the facts of the instant case, as disclosed by the plaintiff’s petition, it is evident that the alleged contract of insurance sued upon was not a completed one. The court, therefore, erred in overruling the defendant’s oral.motion to dismiss the petition on the ground that it set forth no cause of action.

5. The error in the ruling on the demurrer rendered the further proceedings in the ease nugatory.

Judgment reversed.

Bloodworth and Stephens, JJ., concur.

At the trial of the case counsel for the defendant moved orally to dismiss the petition, on the ground that no cause of action was set forth. The motion was overruled, the trial resulted in a verdict for the plaintiff, the defendant’s motion for a new trial was overruled, and exceptions to the rulings stated were duly taken.

Shipp & Kline, King & Spalding, for plaintiff in error. Parker & Gibson, contra.