35 Ga. App. 467 | Ga. Ct. App. | 1926
(After stating the foregoing facts.) In the order refusing to the plaintiff another trial, the judge said in part: “It is apparent that R. C. Shaw, the husband of Mrs. R. C. Shaw, the owner of the premises insured, in the taking out of the policy was acting in the interests of the Marietta Loan & Trust Company, the beneficiary in the loss-payable clause. This being true, the Marietta Loan & Trust Company was under legal obligation, and in the exercise of reasonable diligence could have known that R. C. Shaw, in whose name the policy was written and who evidently represented himself to [be ?] the owner of the equity in the real estate insured, was not such in fact and had no interest in the property. The insurance company, the defendant in this case, was under no legal obligation to investigate; they placed in the hands of Shaw, who represented himself to be the owner or one with an insurable interest, a policy containing a stipulation that misrepresentation as to ownership would mean cancellation of the policy. Shaw delivered the policy to the Marietta Trust & Loan Company, and it was their duty to have determined the correctness of his representations of insurable interest. They failed to do this at their own risk, and as Shaw was acting for them, was without insurable interest, and legally incapable of taking out a policy, the loss must fall on the principal.” We agree with the judge in the conclusion that Shaw “was without insurable interest and legally incapable of taking out a policy” on the property insured. However, the plaintiff insists “that even if R. C. Shaw had no interest in the property, but that the title thereto was in his wife instead, the legal title being in the plaintiff in this case, they would not be affected (since the New York Standard clause was attached to the policy) by any misrepresentation made to the company on the part of Shaw;” and as supporting this contention they cite Southern States Fire & Casualty Ins. Co. v. Napier, 22 Ga. App. 361 (supra), and Equitable Fire Ins. Co. v. Jefferson Standard Life Ins. Co., 26 Ga. App. 241, 246 (105 S. E. 818). We can not agree with this contention of counsel, or that this contention is supported by the authorities cited. Those cases are differentiated from the one now under consideration by the fact that in each of them the property was insured by the owner thereof.
The court-did not err in directing a verdict for the defendant, nor in thereafter refusing to the plaintiff a new trial.
Judgment affirmed.