Counsel for appellant sought, in the summary judgment proceeding, to have the lower court take judicial notice of a companion suit by the plaintiff against the insurance company’s local agent involving the same facts and cirсumstances here, the same allegedly containing admissions against plaintiff’s interest. But this could not be done, for neither the trial court nor this court can judicially notice the record and decision in another case, even in the same court.
Ga. Cas. &c. Co. v. Reville,
It is the contention of the appellant herein that the' *588 policy of insurance written by it contained a provision limiting the authority of the insurer’s agent and providing that no waiver could be made except in writing, and that, upon examination of all the pleadings, admissions, depositions and other matters submitted in support of the motion for summary judgment, the averments of the petition have been pierced, and there remains no question of fact for determination by a jury, since the record, as it now stands, shows clearly that there can be no recovery.
But the insured contends that the insurer is estopped to deny coverage under the clause which provided that a lack of occupancy for more than 60 days would void coverage, contending that the insurer, through its agent and alter ego, knew of the lack of occupancy when the building was first insured, and at all times thereafter, including the time when the policy was renewed, and until the building was destroyed by fire; that the authorized agent had advised him that at all times he wаs completely covered under the policy or policies written, knowing the property was vacant when it was purchased and that it remained vacant during the period the first policy was in effect, and knowing that it was vacant agаin when the policy was renewed and that it remained vacant at all times during the period covered by the policies; and that it was vacant and being remodeled at the time of the fire; that plaintiff was not aware that any vacan- . сy permit was necessary; that the authorized agent admits that the failure to obtain vacancy permits was an oversight on the agent’s part, and he contends that the motion for summary judgment was properly denied since there remain faсts for determination by a jury as to the liability of the insurance company for the loss occurring. The insurer contends that no waiver or estoppel arises against it because of the express language in the policy which required that аny agreement or waiver be in writing and attached to the policy.
During oral argument before this court, counsel for the insurer asserted that coverage was effective for the first 60 days after the issuance of the policy, despite the lack of occupancy, and that when it was re-insured, that is, re-issued, coverage was effective for another 60 days immediately following the re-issue. Thus, although the insured had paid a premium for insurance *589 for a total of more than 16 months, the insurer contends coverage was effective for only 4 months of this period.
The law is very strict respecting motions for summary judgment and any doubt must be resolved in favor of the respondent in such motions. In the case of
Holland v. Sanfax Corp.,
Thus the question here for decision is whether or not the insurance company is estopped to defend this case by showing that the provisions of the policies hаd not been waived in writing, and hence there was no coverage under the insurance contract. The authorities are not uniform respecting waiver and estoppel in cases where the insurance company’s agent and altеr ego is aware of the lack of occupancy when the building is first insured. Counsel for appellant argues with much force that such lack of occupancy was perfectly consistent with the issuance of the policy, as the insured hаd 60 days in which to occupy the premises, and thus make the coverage extend beyond the 60 days, but in this case the renewal of the policy found the property still unoccupied, and with full knowledge by the insurer, through its agent and alter ego, that it had not been occupied
*590
and was still unoccupied, the policy was renewed. The record is silent as to any discussion between the parties except that the agent advised plaintiff at all times that he was fully covered by the said firе insurance policy. In the deposition of this agent he states that it was an oversight on his part that no vacancy permit was obtained. The insurer’s counsel maintains that the contract spelled out a lack of authority on the part оf its agent to make any waiver except in writing. As previously stated, the authorities are not uniform, but the earlier authorities are to the effect that the agent’s knowledge, despite the provisions in the policy against waiver, may, in fact, сonstitute an estoppel. Under the rule of stare decisis we are bound to follow the oldest decisions of this court and of the Supreme Court when they have not been overruled. Such a case is that of
Clay v. Phoenix Ins. Co.,
Code
§ 38-114 sets forth the law as to- estoppel, and while two contracting pаrties may agree that waivers must be in writing, still we have found no authority that holds they may agree that an estoppel may not arise against one or the other party if his conduct is such as to amount to estoppel. The difference betwеen waiver and estoppel is slight but there is a difference. Since the agent’s knowledge is the company’s knowledge, even though there is an assertion in the policy that the contract shall be void, yet the policy was issued with notice to the company that the policy would not be complied with as to vacancy. Thus the company by accepting the insurance has placed itself in a position where it would be inequitable to allow it to make the defense here. See
Grantham v. Royal Ins. Co.,
This case differs on its facts from that of
Fire & Cas. Ins. Co. v. Fields,
Under the previously cited authorities as to motions for summary judgment wherein all doubts must be resolved in favor of the respondent, and it appearing from the depositions that the authorized agent was (1) aware of the unoccupancy at the time the policy was written in the beginning, and again at the time it was renewed, and knew it was not going to be occupied as it was being remodeled, (2) the policies remained in his possession and the provisions thereof were outside the knowledge of the insured, (3) he had advised the insured that he was fully covered, and (4) he made the statement in his deposition that the failure to obtain a vacancy permit was his oversight, there is sufficient doubt to require a jury verdict on the question of estoppel. Thus the motion for summary judgment was properly denied.
Judgment affirmed.