Grantham v. Royal Insurance
130 S.E. 589
Ga. Ct. App.
1925
Check Treatment
Bloodworth, J.

(Aftеr stating the foregoing facts.) The taking up of the first retention-of-title note and the payment on the automobile and giving of the second note did not increase the hazard of the insurer, but, on the contrary, increased the interest of the insured and presumedly would make him more careful of the propеrty insured. Both notes retained title in the dealer, covered the same property, and were signed by the same party, the assured. A renewal of a retention-of-title note will not forfeit a policy of insurance which contains a condition against incumbrances, where the renewal note is for а lesser amount, covers the same property, is signed by the same payor, and in no way increases the hazard of the insurer. “This is so for the reason thаt it is the same hazard of which the insurer had knowledge when it assented to pay the loss to the insured’s appointee.” See, in this connection, Hartford Fire Ins. Co. v. Liddell Co., 130 Ga. 14 (60 S. E. 107, 14 L. R. A. (N. S.) 168, 124 Am. St. Rep. 157).

The follоwing material evidence is uncontradicted: (1) that the contract provided that if the insured’s property was incumbered or the assured made any misrepresentations, the policy was void; (2) that the contract provided that it embodied all the agreements between the parties, and that no agent of the insurance company had authority to waive any of them; (3) that the contract as written showed one of the warranties of the assured to be that the automobile was fully paid for; (4) that the automobile was not fully paid for, but that title to the same was retained by the vendors thereof; (5) that plaintiff, аt the time he applied for the insurance on the automobile, delivered to the duly authorized agent of the defendant company the memorаndum showing that the automobile was not fully paid for, and that the vendors of the automobile retained title thereto.

This evidence, being uncontradieted, must bе accepted as true, and ‍‌​‌​‌‌‌​​​‌‌‌​‌‌‌​‌‌‌​‌‌‌‌‌‌‌​​‌​‌‌‌​‌​‌​‌​​​‌​‌‍leaves but one question for determination: was the knowledge *418of the agent as to the incumbrance of the automobile knowledge of the company, and did the company, by issuing the policy in the light of this knowledge, waive the breach of the terms of the policy above named ?

The policy of our law generally is in oppositiоn to forfeitures, and contracts “are to be so construed, if possible, as to avoid forfeitures and to advance the beneñcial purpоses intended to be accomplished.” Clay v. Phœnix Ins. Co., 97 Ga. 44 (1) (25 S. E. 417); Civil Code, §§ 3717, 4568.

In Simon v. Mechanics Ins. Co., 31 Ga. App. 138 (2) (121 S. E. 343), this court held: “Where in such a case the agent authorized to issue and deliver the policy in behalf of the insurаnce company issues and delivers it with knowledge that the automobile is not fully paid for and was purchased under a contract retaining title in the seller until full payment of the purchase price, knowledge of the agent is knowledge of the company, and delivery of the policy with such knowledge аmounts to a waiver of a ‘warranty’ in the policy that the automobile is fully paid for, and of the stipulation therein that the company shall not be liablе if the interest of the assured in the property be other than unconditional ownership.” See also pages 139, 140 (2), and cases cited. But'it is insisted by the defendаnt in error that under the contract the agent had no authority to waive any of the terms thereof. This contention is without merit in the case under consideration, because the agent of the ‍‌​‌​‌‌‌​​​‌‌‌​‌‌‌​‌‌‌​‌‌‌‌‌‌‌​​‌​‌‌‌​‌​‌​‌​​​‌​‌‍defendant company had notice of the incumbrance at and before the issuance of the poliсy, and the waiver was made upon delivery of the policy, and not subsequent thereto; and “limitations in an insurance policy upon the authority of the аgent of the company to waive the conditions of the contract of insurance are to be treated as referring to waivers made subsequеntly to the issuance of the policy. . . True, the policy states on its face that no agent has the power to waive* any of the conditions of thе policy, and that none of them will be deemed to have been waived unless such waiver is attached to or endorsed upon the policy in writing. But this is not а question of waiver, so much as of notice and estoppel. The agent’s knowledge, as has been seen, is the company’s knowledge. In spite оf the assertion in the policy that the contract shall be void if the ownership of the property is of a given character, the *419policy lias bеen issued with notice to the company that the ownership is of that character. Eegardless of any question of waiver, then, the company has placed itself in a position where it would be inequitable to allow it to make the defense which it seeks.” Johnson v. Ætna Ins. Co., 123 Ga. 404 (2), 410 (51 S. E. 339, 107 Am. St. Rep. 92). “It is well settled that where an agent who is authorized to issue and deliver policies in behalf of an insurance company issues and delivers a policy with knowledge of the true state of the title, the knоwledge of the agent is knowledge of the company, and the delivery of the policy with such knowledge amounts to a waiver of conditions relating to the existing state of the title.” Mechanics & Traders Ins. Co. v. Mutual &c. Asso., 98 Ga. 266 (25 S. E. 458). In the case under consideration the assured, at the time he applied for the insurance and gave ‍‌​‌​‌‌‌​​​‌‌‌​‌‌‌​‌‌‌​‌‌‌‌‌‌‌​​‌​‌‌‌​‌​‌​‌​​​‌​‌‍the agent notiсe of the retention of title, also paid the premium, and “it will be presumed conclusively, when, with knowledge that there was a mortgage upon the property, it (the insurаnce company) nevertheless issued the insurance and accepted the premium, that it intended to waive the condition in question, and which would hаve the effect, otherwise, to render the policy void” (italics ours). Clay v. Phœnix Ins. Co., supra. See also headnotes on page 44. “Stipulations and conditions in a policy of fire insurance that it shall be void, unless such and such things are true, are waived, where the company’s agent by whom the policy was deliverеd to the insured knew at and before the time of making the delivery all the facts to which the stipulations and conditions related, and where the company made no effort to void the policy until after notice of a loss thereunder. Mechanics & Traders Ins. Co. v. Mutual Real Estate & Building Asso., 98 Ga. 262 (1) (25 S. E. 457).” Girard Fire & Marine Ins. Co. v. Carter, 32 Ga. App. 3 (2) (122 S. E. 649). See also Athens Mutual Ins. Co. v. O’Keefe, 133 Ga. 792 (1) (66 S. E. 649).

To hold that an insurance company could collect-the рremium for a policy, and then with full knowledge of the true facts embody a false warranty in the policy which would render the policy void and useless to the assured, would ‍‌​‌​‌‌‌​​​‌‌‌​‌‌‌​‌‌‌​‌‌‌‌‌‌‌​​‌​‌‌‌​‌​‌​‌​​​‌​‌‍open the way for fraudulent transactions. Neither should an insurance company be allowed to reap a benefit from its own mistakе. The real negligence in this case devolves upon the insurance' company, because of the failure of *420its duly authorized agent to properly issue the policy in conformity to the memorandum furnished him by the insured. Under the facts of this ease and the decisions hereinbefore referred to, the company waived the breach of the said conditions embodied in the policy, and the trial judge erred in directing a verdict for the defendant company.

“The ruling here made does not conflict with that made in the case of Conyers v. Yorkshire Ins. Co., 30 Ga. App. 6 (117 S. E. 102). It was there held that notice to a person, alleged lb have been associated in some way with ‍‌​‌​‌‌‌​​​‌‌‌​‌‌‌​‌‌‌​‌‌‌‌‌‌‌​​‌​‌‌‌​‌​‌​‌​​​‌​‌‍the local agеnt of the insurance company, that the insured was not the unconditional owner of the automobile insured, was not notice to the insurance company. Whereas, in the instant case, the defendant’s agent who took the application and procured and delivered the policy and reсeived payment therefor knew, when the policy was issued and delivered, that the insured was not the unconditional owner of the automobile insured.” Simon v. Mechanics Ins. Co., 31 Ga. App. 142 (121 S. E. 344).

Judgment reversed.

Broyles, C. J., and Luke, J., concur.