Opinion
36020.
DECIDED JANUARY 25, 1956.
Action on insurance policy. Before Judge Kennedy. Richmond Superior Court. November 1, 1955.
M. Harry Steine, Henry J. Heffernan, for plaintiff in error.
Boller Yow, contra.
1. Where an insurance company places limitations upon the authority of its agents to enter into contracts of insurance and such limitations are contained only in the policy itself, such limitations are to be deemed as referring to matters occurring subsequently to the issuance of the policy, and do not apply to facts or conditions which were existing at the inception of the contract. "In such a case the knowledge of the agent is the knowledge of the insurer, and if a policy is issued with knowledge by the agent of a fact or condition which by the terms of the contract would render it void, the insurer will be held to have waived the existence of such fact or condition, and the policy will not be voided thereby. Johnson v. Aetna Ins. Co., 123 Ga. 404 (2) ( 51 S.E. 339, 107 Am. St. R. 92); Athens Mutual Ins. Co. v. Evans; 132 Ga. 703 (5) ( 64 S.E. 993); Athens Mutual Ins. Co. v. Ledford, 134 Ga. 500 (1) ( 68 S.E. 91)." Interstate Life Accident Co. v. Bess, 35 Ga. App. 723 ( 134 S.E. 804).
2. Under an application of the foregoing principles of law to the facts of the present case, the trial court did not err in overruling the motion to dismiss the petition, and the superior court, on certiorari, did not err in affirming that judgment and entering final judgment for the plaintiff. The limitations placed upon the authority of the defendant's agents to waive provisions of the policy are contained only in the policy itself and consequently refer only to matters occurring subsequently to the issuance of the policy. As the allegations of the petition, as against demurrer, must be taken as true, the defendant, through its agents, had actual knowledge of the joint ownership of the automobile by the plaintiff and his son before the issuance of the policy; and, although the declaration in the policy that the plaintiff was sole owner of the automobile is an apparent misrepresentation, the provision of the policy by the terms of which such a misrepresentation of ownership would void the policy must be taken to have been waived.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
DECIDED JANUARY 25, 1956.
C. W. Hopkins brought an action for breach of a contract of insurance against Bankers Fire Marine Insurance Company in the Municipal Court of Augusta. The material allegations of his petition, as finally amended, are substantially as follows. On August 17, 1953, the plaintiff joined with his son, C. D. Hopkins, in the purchase of a described automobile. The plaintiff assumed joint responsibility with his son for the purchase of the automobile and the legal title was placed jointly in the names of the plaintiff and his son, who was a minor and for whose benefit the automobile was purchased. The purchase of the automobile was financed by General Finance Thrift Corporation, which holds the conditional-sales contract on the automobile. Under the conditional-sales contract, the automobile was conveyed as security for the indebtedness to General Finance Thrift Corporation, the premium for the policy of insurance was included, and there was an unpaid balance of $163. General Finance Thrift Corporation was fully informed of the character of the plaintiff's participation in the purchase of the automobile and the nature of the plaintiff's interest therein; and, by virtue of the relationship which existed between the defendant and General Finance Thrift Corporation, the facts known to the finance company were known to the defendant. Under an agreement between the defendant and the finance company, in return for a commission on the policies of insurance written by the defendant, all automobiles financed by the finance company were insured by the defendant against collision or upset. Under this agreement the finance company furnished the defendant's agent a copy of its discount sheet, prepared by the finance company in connection with each automobile financed by it, and from this discount sheet the defendant's agent obtained the information for the issuance of its policies of insurance. In furnishing this information to the defendant's agent, the finance company was acting as agent for the defendant. A copy of the discount sheet prepared by the finance company in connection with the financing of the automobile purchased by the plaintiff and his son was furnished to Leopold Mothner, the defendant's agent issuing the policy upon which suit is brought, prior to the issuance of the policy, and from this discount sheet Mothner obtained the information for the policy. This discount sheet revealed the interest of the son in the automobile. On August 17, 1953, the defendant, upon information furnished by the finance company, issued its one-hundred-dollar deductible-collision insurance policy, No. A-11495, covering the automobile, and insuring the plaintiff and the finance company, as their interest appeared, against loss by collision or upset of the automobile. A copy of the policy was attached to the petition and made a part thereof. On December 11, 1954, the plaintiff's son, C. D. Hopkins, while operating the automobile, with the knowledge and consent of the plaintiff, was involved in an accident, which resulted in the total destruction of the automobile. The premium for the policy of insurance was paid in full and the policy was in full force and effect on the date of the accident and the loss. The value of the automobile prior to the accident was $850 and immediately thereafter was $50. The plaintiff gave the defendant immediate notice of the loss, and except to the extent that the terms and conditions of the policy had been waived, the plaintiff has fully complied with all other terms and conditions of the policy. The defendant conducted an investigation of the accident and notified the plaintiff of its denial of liability under the policy. On December 29, 1954, the plaintiff again notified the defendant of the accident and loss and made demand upon it for payment of the insurance due under the terms of the policy. The plaintiff also called upon the defendant to provide him with the necessary blanks for making proof of loss within the sixty-day period for which provision is made in the policy, but the defendant failed and refused to do so. In response to the plaintiff's notice of December 29, 1954, and his request for forms for making proof of loss, the defendant, through A. F. Kirby Company, the defendant's general agents, issued a further denial of liability under the terms of the policy. By virtue of the foregoing facts the defendant has waived proof of loss and the other conditions precedent to a right of action to enforce payment as required by the terms of the policy, and by virtue of the foregoing facts the defendant is indebted to the plaintiff in the sum of $700.
The defendant moved to dismiss the plaintiff's case upon the following grounds. Item No. 5 of the policy provides: "Except with respect to bailment lease, conditional sale, mortgage or other encumbrance, the insured is the sole owner of the automobile except as stated herein: nil." Paragraph 16 of the conditions contained in the policy provides: "By acceptance of this policy, the insured agrees that the statements in the declarations are his agreements and representations, that the policy issued in reliance upon the truth of such representations and that this policy embodies all agreements existing between himself and the company, or any of its agents relating to this insurance." Paragraph 4 of the plaintiff's petition alleges that on August 17, 1953, the plaintiff joined with his son, C. D. Hopkins, in the purchase of . . . [the automobile], legal title to which said property was placed jointly in the plaintiff and the said C. D. Hopkins." The petition shows on its face that the plaintiff has misrepresented a material fact in that he alleges in his petition that the legal title to the automobile was vested in C. W. Hopkins and his son, whereas, by his declaration set forth on the face of the policy, he declares that he is the sole owner of the automobile. Paragraph 14 of the conditions of the policy provides: "Fraud and misrepresentations: This policy shall be void if the insured has concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof or in case of any fraud, attempted fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after loss." The plaintiff alleges in paragraph 7 of his petition that General Finance Thrift Corporation was fully informed of the character of the plaintiff's participation in the purchase of the automobile and the nature of his interest therein, which knowledge, by virtue of the relationship existing between the defendant and the finance company, was known to the defendant. Paragraph 11 of the conditions of the policy provides: "Changes: Notice to any agent or knowledge possessed by any agent or any other person shall not effect a waiver or a change in any part of this policy or estop the company from asserting any right under the terms of this policy, nor shall the terms of this policy be waived or changed, except by endorsement issued to form a part of this policy." The petition fails to allege any endorsement of the policy disclosing that C. D. Hopkins had any interest in the automobile, the subject matter of the insurance, nor does the policy have attached to it any endorsement reflecting any ownership on the part of C. D. Hopkins. The petition shows on its face that the policy of insurance is void and that the plaintiff cannot recover thereon from the defendant.
The trial court overruled the motion to dismiss the petition. The case proceeded to trial and the jury returned a verdict for the plaintiff in the amount of $650. The defendant filed no motion for new trial, but applied to the Superior Court of Richmond County for a writ of certiorari upon the ground that the trial court erred in overruling the motion to dismiss the plaintiff's petition. The superior court affirmed the judgment of the trial court in overruling the motion to dismiss and as there were no questions of fact for determination entered final judgment in the amount of $650 for the plaintiff. The present writ of error assigns error upon the affirmance of the judgment of the trial court in overruling the motion to dismiss.