Brooker v. American Insurance Co.

16 S.E.2d 251, 65 Ga. App. 713, 1941 Ga. App. LEXIS 371

• Court: Court of Appeals of Georgia
• Decided: July 31, 1941
• Docket: 28842.
• Status: Published

Opinions

Per Curiam.

The policy insured Mrs. Brooker against loss of a described automobile truck by fire, etc., and the loss-payable clause provided that the loss, if any, should be payable to the assured and S. O. Jenkins, as their “interest may appear.” The assured sold this truck to Mrs. Lois Jacobs, subject to the interest therein of Jenkins, and surrendered to the purchaser the policy sued on. Notice of such sale and surrender of the policy was given to the defendant’s agent, B. F. Grantham, the owner of the B. F. Grantham Insurance Agency of Glynn County, Georgia, and a request was made that the policy be changed so as to protect the interest of the purchaser and of Jenkins. This agent assured Jenkins, the person making such request, that the necessary change would be made, and that both his interest and that of the purchaser would be fully protected from that date. Thereafter the truck was destroyed by fire. It is contended by the defendant that the provisions of the policy were violated and the policy rendered void, before the destruction of the truck, when the assured sold the truck to Mrs. Jacobs, which transfer of title was not “provided by agreement in writing added” to the policy, as provided in the “title and ownership” clause of the policy. It is contended that the fact that Jenkins, on consummation of the sale to Mrs. Jacobs, notified the defendant by notifying B. F. Grantham, the owner of the Grantham Insurance Agency, the defendant’s agent who wrote and delivered such policy, and requested such agent to change the policy so as to protect his interest and the interest of Mrs. Jacobs therein, and that such agent of the defendant, in its behalf, assured’Jenkins that the change would be made and his interest and the interest of Mrs. Jacobs fully protected from that date, did not show a suffi cient compliance with the provisions of the policy; that snch change in title and' ownership, in order to be valid and binding on the company, must be “ provided by agreement in writing added” to the policy, which was not done; and that the statement and assurance given to Jenkins by its agent, Grantham Insurance Agency, that the policy would be changed so as to fully protect, from the date of the sale of the truck by the assured to Mrs. Jacobs, the interest of Mrs. Jacobs and that of Jenkins, was not binding on the company for the reason that the policy provided that “no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the assured unless so written or attached.” In other words, it is contended that a change in title or ownership of the property insured voided the policy where it did not appear that the company had agreed thereto by a writing added to the policy; and that no agent or other representative of the company could waive the provisions of the policy as to a transfer of title and termination of interest of the assured rendering the policy void where such waiver was not written on “or attached” to the policy.

There can be no question but that the sale of the truck by the assured to Mrs. Jacobs was a violation of the “title and ownership” clause of the policy, and unless such sale and transfer were agreed to in writing by the insurer and this agreement added to the policy, or unless the company consented thereto and there has been a waiver of such written agreement to the sale of the property by an authorized agent of the insurer, or an estoppel in pais relatively thereto, the policy was rendered void by the sale of the truck, the assured thereby divesting herself of any insurable interest therein. Even were there no such provision in the policy sued on as the ■“title and ownership” clause quoted above, a transfer and sale of the truck whereby the assured had no further interest and title therein would void the policy. See 29 Am. Jur. 509; Code, § 56- 812, 56-825. The latter section declares: “An alienation of the property insured and a transfer of the policy, without the consent of the insurer, shall void the policy.” As appears from the allegations of the petition Jenkins had a claim on and interest in the insured property as mortgagee or for an unpaid balance on the purchase-money. His claim or interest is recognized in the policy to the extent that the loss-payable clause provides that any loss would be payable to the assured and Jenkins, as their interest, might appear. Jenkins, under the loss-payable clause, had no other or greater right than the assured, so that a breach of a condition or provision against alienation or change of title or interest by the assured would prevent a recovery by Jenkins. Southern States Fire &c. Ins. Co. v. Napier, 22 Ga. App. 361 (96 S. E. 15); Hartford Fire Ins. Co. v. Liddell Co., 130 Ga. 8, 13 (60 S. E. 104, 14 L. R. A. (N. S.) 168, 124 Am. St. R. 157); 38 A. L. R. 368.

There was no written agreement by the insurer to the sale of the truck by Mrs. Brooker to Mrs. Jacobs added to the policy. By this sale the assured parted with her insurable interest in’ the property. Therefore, unless there was a written agreement by the insurer added to the policy, or unless this was waived by an authorized agent, or the insurer is equitably estopped from insisting on a forfeiture of the policy because of a violation of the title and ownership clause thereof, Jenkins could not recover on the policy as to-whatever interest he had in the property. Therefore, with knowledge that the policy was void as to both the assured and Jenkins,, and that the purchaser could not recover on the policy unless the company consented to such sale and transfer of title, and agreed in writing to the sale of the truck, Jenkins, acting for himself and for the purchaser, notified the insurer of the sale and requested that the policy be changed so as to protect both him and the purchaser. The defendant’s agent assured Jenkins that this would be done and that his interest and the interest of the purchaser were from that date fully protected.

This case is controlled by the principles stated in Corporation of the Royal Exchange Assurance v. Franklin, 158 Ga. 644 (124 S. E. 172, 38 A. L. R. 626). These principles are that there are two> prerequisites in a case such as this to the arising of an estoppel against the company to deny that the insured does have the protection contended for. First, the company must have access to the policy; second, there must have been a reliance on the promise of the agent by those to whom the promise was made and for whose benefit it was made. It is alleged in this case that the policy was delivered to the purchaser. The petition is silent as to whether it was ever delivered to the insurance agent. The petition can not be construed to mean that the policy was delivered to the agent, as was the case in New York Underwriters Insurance Co. v. Anderson, 52 Ga. App. 112 (182 S. E. 529). In that case it was alleged that the agent had procured the indorsement and transfer, and such allegation carried with it the necessary conclusion that the agent had the policy at the time. It is not alleged in this case that either the purchaser of the truck or the mortgagee relied on the agent’s promise and acted thereon to the injury of either. The truck was sold before the alleged promise was made. In this respect this case is similar to Simonton v. Liverpool &c. Insurance Co., 51 Ga. 76. So far as we can find there is no allegation in the petition as to reliance on the promise by any one which will satisfy the requirement of the law in respect thereto, inasmuch as the assured and the morgtagee herein must rely on the doctrine of estoppel to prevail.

The petition being deficient in the foregoing particulars it was ■not error to sustain the demurrer and dismiss the action.

Judgment affirmed.

Sutton and Felton, JJ., concur.