Fire & Casualty Insurance v. Fields

Court of Appeals of Georgia

Fire & Casualty Insurance v. Fields

94 S.E.2d 113, 94 Ga. App. 272, 1956 Ga. App. LEXIS 523

CourtCourt of Appeals of Georgia

DecidedJuly 12, 1956

Docket36202

StatusPublished

Cited by6 cases

This text of 94 S.E.2d 113 (Fire & Casualty Insurance v. Fields) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Fire & Casualty Insurance v. Fields, 94 S.E.2d 113, 94 Ga. App. 272, 1956 Ga. App. LEXIS 523 (Ga. Ct. App. 1956).

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Opinions

Felton, C. J.

The stipulation of- facts in this case included the following, which are not set forth in full in the statement of facts: “No part of the premium was paid upon delivery of the said renewal certificate. Thereafter, on or about December 1, 1954, Goldstein was informed by plaintiffs’ agent (Mr. Moses Leff) that the property was occupied by Gresham’s Florist for the month of December, 1954; that the property would thereafter be vacant commencing January 1, 1955, and that the owner-plaintiffs had no prospects for other tenants. That following the December 1, 1954, advice given to Goldstein as to occupancy and vacancy, Goldstein frequented the office of Mr. Leff and on each occasion was advised of the property status. On one such occasion, which occurred on or about February 1, 1955 (and at which time $100 of the $216 total premium was paid), Goldstein was again informed of the vacancy and lack of prospective tenant. A further occasion of a discussion with Goldstein occurred on March 21, 1955, at which time the balance of the premium payment of $116 was paid; the property then being vacant for eighty (80) consecutive days. Further discussion between Goldstein and Leff occurred during the month of April, 1955, and the same information as to vacancy was imparted to Goldstein. On each [275]*275occasion of said notice and information given to Goldstein, the plaintiffs were informed by him that he would take care of the matter and not to worry about it, that they were covered.”

The insurance policy in this case provided that, “This policy shall be cancelled at any time at the request of the insured, in which case this company shall, upon demand and surrender of this policy, refund the excess of the paid premium above the customary rates for the expired time. . .”

In Sparks v. National Union Fire Ins. Co., 23 Ga. App. 38, 43 (97 S. E. 462), the court stated, “It is true that it is a well-settled principle of law that notice to a duly authorized agent of an insurance company, when given at the time the policy is issued, is notice to the company; and had the policy in this case been issued by the defendant with notice to its agent, at the time the policy was issued, that the goods thereby insured were not contained in the house therein specified, and had the company received and retained the premium with such notice to the agent, it would be estopped from setting up such defense. . .”

While the insurance policy in this case did not provide that the policy would be void if the premises became vacant, it did provide that there would be no coverage if the premises had been vacant for more than sixty days. In view of the fact that the insureds had the right to cancel this policy and procure a return of a part of the premium, it seems that the facts bring the case within the ruling that it would be a fraud upon the insureds to permit the insurance company which had accepted the premium with the knowledge that the building had been vacant for more than sixty days to repudiate its obligation to continue the insurance coverage. The agent which issued the policy in this case had the authority to extend the coverage for additional years by mailing endorsements to the insureds and it was not necessary for the agent to have possession of the policy. Certainly if the local agent could do this, he could by endorsement waive the vacancy provision of the policy without having the policy in his possession. The payment of a balance of the premium under the facts here conclusively shows a reliance upon the representation of the agent. The agent of the insurance company owed a duty under the circumstances to the insureds to absolutely provide for proper coverage or to inform them that there would be no cover[276]*276age in view of the vacancy so as to give the insureds the opportunity to cancel the policy and to protect themselves from loss. The facts of this case bring it within the ruling above cited in Sparks v. National Union Fire Ins. Co., 28 Ga. App. 38, especially the acceptance of the additional payment on the premiums under the circumstances. The holdings that a premium is earned upon delivery of a policy of insurance have no relevancy in this case in view of the cancellation provision. The court did not err in finding for the plaintiffs.

Judgment affirmed.

Gardner, P. J., Townsend, Carlisle and Nichols, JJ., concur. Quillian, J., dissents.

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Felton, C. J.

The stipulation of- facts in this case included the following, which are not set forth in full in the statement of facts: “No part of the premium was paid upon delivery of the said renewal certificate. Thereafter, on or about December 1, 1954, Goldstein was informed by plaintiffs’ agent (Mr. Moses Leff) that the property was occupied by Gresham’s Florist for the month of December, 1954; that the property would thereafter be vacant commencing January 1, 1955, and that the owner-plaintiffs had no prospects for other tenants. That following the December 1, 1954, advice given to Goldstein as to occupancy and vacancy, Goldstein frequented the office of Mr. Leff and on each occasion was advised of the property status. On one such occasion, which occurred on or about February 1, 1955 (and at which time $100 of the $216 total premium was paid), Goldstein was again informed of the vacancy and lack of prospective tenant. A further occasion of a discussion with Goldstein occurred on March 21, 1955, at which time the balance of the premium payment of $116 was paid; the property then being vacant for eighty (80) consecutive days. Further discussion between Goldstein and Leff occurred during the month of April, 1955, and the same information as to vacancy was imparted to Goldstein. On each [275]*275occasion of said notice and information given to Goldstein, the plaintiffs were informed by him that he would take care of the matter and not to worry about it, that they were covered.”

The insurance policy in this case provided that, “This policy shall be cancelled at any time at the request of the insured, in which case this company shall, upon demand and surrender of this policy, refund the excess of the paid premium above the customary rates for the expired time. . .”

In Sparks v. National Union Fire Ins. Co., 23 Ga. App. 38, 43 (97 S. E. 462), the court stated, “It is true that it is a well-settled principle of law that notice to a duly authorized agent of an insurance company, when given at the time the policy is issued, is notice to the company; and had the policy in this case been issued by the defendant with notice to its agent, at the time the policy was issued, that the goods thereby insured were not contained in the house therein specified, and had the company received and retained the premium with such notice to the agent, it would be estopped from setting up such defense. . .”

While the insurance policy in this case did not provide that the policy would be void if the premises became vacant, it did provide that there would be no coverage if the premises had been vacant for more than sixty days. In view of the fact that the insureds had the right to cancel this policy and procure a return of a part of the premium, it seems that the facts bring the case within the ruling that it would be a fraud upon the insureds to permit the insurance company which had accepted the premium with the knowledge that the building had been vacant for more than sixty days to repudiate its obligation to continue the insurance coverage. The agent which issued the policy in this case had the authority to extend the coverage for additional years by mailing endorsements to the insureds and it was not necessary for the agent to have possession of the policy. Certainly if the local agent could do this, he could by endorsement waive the vacancy provision of the policy without having the policy in his possession. The payment of a balance of the premium under the facts here conclusively shows a reliance upon the representation of the agent. The agent of the insurance company owed a duty under the circumstances to the insureds to absolutely provide for proper coverage or to inform them that there would be no cover[276]*276age in view of the vacancy so as to give the insureds the opportunity to cancel the policy and to protect themselves from loss. The facts of this case bring it within the ruling above cited in Sparks v. National Union Fire Ins. Co., 28 Ga. App. 38, especially the acceptance of the additional payment on the premiums under the circumstances. The holdings that a premium is earned upon delivery of a policy of insurance have no relevancy in this case in view of the cancellation provision. The court did not err in finding for the plaintiffs.

Judgment affirmed.

Gardner, P. J., Townsend, Carlisle and Nichols, JJ., concur. Quillian, J., dissents.

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94 S.E.2d 113, 94 Ga. App. 272, 1956 Ga. App. LEXIS 523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fire-casualty-insurance-v-fields-gactapp-1956.

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