Hite v. Liverpool & London & Globe Insurance

33 Ga. App. 349 | Ga. Ct. App. | 1925

Lead Opinion

Per Curiam.

Where a fire-insurance policy appears on its face to be issued to one as trustee, upon property purporting to belong to him but which in fact belongs to those for whom he acts as trustee, and where there is a provision in the policy of insurance avoiding it “if the interest of the insured in the property be not truly stated,” or “if the subject of insurance be personal property and be or become incumbered by a chattel mortgage,” and where the insurer) through its agent who issued the policy, had at that time actual notice from the trustee that the property insured was not his property, but was the property of those for whom he was acting as trustee, the insurer, because of its knowledge at the time of issuing the policy, is held to have waived the above-quoted provision of the policy. Sec Liverpool & London & Globe Insurance Co. v. Georgia Auto & Supply Co., 29 Ga. App. 334 (115 S. E. 138); Peoples & Planters Fire Association v. Wyatt, 31 Ga. App. 684 (121 S. E. 708).

Decided January 14, 1925. Milner & Faricas, for plaintiff. Smith, Hammond & Smith, Pottle & Hofmayer, for defendant.

(a) Applying the foregoing principle, the court erred in sustaining the demurrer to the petition and in dismissing plaintiff’s suit.

Judgment reversed.

Broyles, G. J., and Bloodioorth, J., concur. Luke J., dissents.

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Dissenting Opinion

Luke, J.,

dissenting. In my opinion the allegations of the petition in this case were insufficient in law. See Ward v. Lord, 100 Ga. 407.