
    32447.
    Fidelity-Phenix Fire Insurance Co. v. Berry.
    Decided April 22, 1949.
    
      W. W. Mwrtdy Jr., Smith, Partridge, Field, Doremus & Ringel, for plaintiff in error.
    
      J. V. Poole, Charles B. Teal, contra.
   Felton, J.

Where in an action on a fire-insurance policy the declaration alleges compliance with the terms of the policy as to the filing of a claim, which was prerequisite to the filing of the action on the policy, it was error for the court to direct a verdict for the plaintiff when there was no evidence as to such compliance with the terms of the policy. This is true even if there was evidence as to a waiver of such compliance, in the absence of an amendment to the petition setting forth such waiver. Fidelity & Casualty Co. v. Gate City Nat. Bank, 97 Ga. 634 (4) (25 S. E. 392); New Zealand Fire Ins. Co. v. Brewer, 29 Ga. App. 773 (116 S. E. 922), and cases cited.

The court erred in overruling the motion for a new trial.

Judgment reversed.

Button, C. J., and Parker, J., concur.  