*367On Motion fob Rehearing.
In the case of Fidelity-Phenix Fire Ins. Co. v. Berry, 79 Ga. App. 179 (53 S. E. 2d 126) it is held: “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,” A similar holding is Neese v. Milwaukee Mechanics’ Ins. Co., 84 Ga. App. 473 (66 S. E. 2d 172).
But in the instant case testimony was introduced that the defendant made an absolute and unequivocal denial of liability, before requesting that an autopsy be made on the body of the insured. No objection was made to the evidence. In National Life &c. Ins. Co. v. Lain, 51 Ga. App. 58 (3) 59, 60 (179 S. E. 751) is the holding: “Where evidence is admitted without objection, although there be no allegation in the declaration authorizing it, the court may properly charge the jury as to its legal effect, and where a party permits evidence to go to the jury without objection, and the jury find on such evidence, the losing party is not entitled to a new trial on the ground that the evidence does not correspond with the declaration, if the declaration could, by amendment, have been made to cover the evidence. Georgia Railroad v. Lawrence, 74 Ga. 534; Central Ry. Co. v. Attaway, 90 Ga. 656-659. ‘Although the pleadings may not present the whole issue, yet if it be fully made by the evidence without objection, it is too late, after verdict for the losing party, to make that the ground of a motion for a new trial.’ Howard v. Barrett, 52 Ga. 15. See also Seabrook v. Brady, 47 Ga. 651, 659; Savannah, Fla. & Western Ry. Co. v Barber, 71 Ga. 644, 648; Savannah &c. Ry. v. Grogan, 117 Ga. 461 (43 S. E. 701); Haiman v. Moses, 39 Ga. 708; Field v. Martin, 49 Ga. 268, 271; M. E. Church v. Dudley Co., 137 Ga. 68 (6), 69 (72 S. E. 480); Artope v. Goodall, 53 Ga. 318, 323. These rulings are based upon the principles that if objection were *368made to the testimony upon the ground that it was not authorized by the pleadings, the pleadings might have been so amended as to authorize the introduction of the testimony. Gainesville & N. W. R. Co. v. Galloway, 17 Ga. App. 702 (4) (87 S. E. 1093); Columbia Fire Insurance Co. v. Tatum, 46 Ga. App. 475 (4) (167 S. E. 911). In the instant case (a suit on a policy of life-insurance) the plaintiff pleaded that all the premiums due under the terms of the policy had been paid in full, and she did not plead a waiver by the insurance company of such terms. On the trial the evidence failed to show payment of the premiums as alleged but it did disclose such a course of dealing by the insurance company, in respect to receiving the premiums after they were due, as authorized the jury to find that the provisions of the policy requiring the payment of premiums within a specified time had been waived by the company ; and the evidence showing such a waiver was admitted without objection.”
Irvin v. Locke, 200 Ga. 675, 679 (38 S. E. 2d 289) contains the pronouncement: “It thus appears from the evidence of the agent making the alleged tender, when taken in its entirety, that is, on both direct and cross-examination, that the tender was, while originally unconditional and as such rejected, ultimately made conditional, in that the vendor was required to execute the deed called for by the bond. There was, therefore, under the decisions last cited, a variance between the allegata in the petition and the probata adduced on the trial; and the evidence, thus varying from the allegata of the petition, could have been objected to as failing to conform. However, this was not done, and the evidence was admitted without objection. Had the evidence been objected to, the plaintiff, without adding a new and distinct cause of action, could have amended her petition, by alleging that upon the outright tender being made, the defendant refused it unless an additional $1000 was added thereto. Since the law does not require vain and useless procedure, a refusal by the obligor to' accept the original outright tender in accordance with the contract, without an additional $1000 being added thereto, dispensed with any necessity of making same; and this is trae although the plaintiff might have *369subsequently made an -additional -tender coupled with the condition -that the defendant would execute -the deed, which the defendant refused to do- for the reason given that an additional $1000 was required. Ansley v. Hightower, 120 Ga. 719 (4) (48 S. E. 197). Under the circumstances, the'failure of the defendant to object to the testimony dispensed 'with the necessity of amending her petition by setting forth the absence of -a necessity for tendering, and the case stands as if the petition had been amended accordingly. Napier v. Strong, 19 Ga. App. 401 (2) (91 S. E. 579); Ocean Steamship Co. v. Williams, 69 Ga. 251 (4a); Steed v. Rees, 192 Ga. 20, 24 (2) (14 S. E. 2d 474); Taylor v. Taylor, 195 Ga. 711, 721 (11) (25 S. E. 2d 506) ; Grice v. Grice, 197 Ga. 686, 699 (30 S. E. 2d 183).”
In Taylor v. Taylor, 195 Ga. 711, 721 (25 S. E. 2d 506) the holding is the same as in National Life &c. Ins. Co. v. Lain, 51 Ga. App. 58, supra; indeed the language of the case is almost identical. Recognition has been uniformly accorded the principle throughout Georgia’s judicial history. Harrison v. Young, 9 Ga. 359 (7). So in our opinion not only was it a question for the jury as to whether the plaintiff complied with the policy provision as to the autopsy, but we are also of the opinion that there was sufficient evidence to support a finding that the defendant waived the clause of the policy to which we have referred by previously denying liability under the policy.
Judgment adhered to.