123 Ga. 404 | Ga. | 1905
Lead Opinion
This was an action on a policy of fire insurance. The court below sustained a demurrer to the plaintiff’s petition, and he excepted. From the petition as amended it appeared* that one of the conditions of the policy was as follows: “ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if . . the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple.” The policy also provided that “no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto. And as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions, unless .such waiver, if any, shall be written upon or attached hereto; nor shall any provision or permission affecting the insurance under this policy exist or be claimed by the insured, unless so written or attached.” The building insured belonged to the plaintiff, but the land on which it was situated did not. It was alleged, however, that when he made application for insurance he expressly informed the agent of the defendant company as to the character of his ownership of the property sought to be insured; “that when he [plaintiff] signed said application, in answer to the question, as to the ownership of the land neither ‘no’ nor ‘yes’ was written in said application;” and “if said question .was answered in the affirmative, . . it was inserted after petitioner had signed said application, without his knowledge, consent, or authority; ” and
Two cases are relied on by counsel for the insurance company, as opposed to the view which is now announced. In Thornton v. Travelers Ins. Co., 116 Ga. 122, it was held that “where in a policy of insurance there is an express stipulation that £ no agent has power to waive any condition of this policy,’ the insured by
The language quoted fits the present case like a glove; and upon the soundness of the principle announced'must depend the decision of this case. A careful study convinces us that the logic of that case is unanswerable. An insurance company re-
Judgment reversed.
Concurrence Opinion
Cobb, J.,
concurring. There is an irreconcilable conflict between the-cases of Mechanics Ins. Co., v. Mut. Bldg. Asso., 98 Ga. 262, and Thornton v. Travelers Ins. Co. 116 Ga. 122; and therefore the ruling in the' former case must control, unless it is reviewed and overruled. That case -was not called to the attention of the court when the decision in the Thornton case was rendered. The case in the 98th Ga. was decided upon authority, and it must be conceded that it is abundantly supported. The ruling in the Thornton case seems, however, to the writer to be the better view, although candor requires an admission that there is little authority iu support of it. As the other members of the court do not think that the case iu the 98th Ga. should be overruled, the writer concurs in the judgment upon the authority of that case, being bound thereby. I am authorized to say that Mr. Presiding Justice Fish agrees with this view.