Sparks v. National Union Fire Insurance

23 Ga. App. 38 | Ga. Ct. App. | 1918

Jenkins, J.

(After stating the foregoing facts). It will be seen' by the terms of the policy sued upon that the goods therein named were insured only while contained in the dwelling house situated at 303 North Dawson Street, Thomasville, Georgia, “and not elsewhere,” except that in case of fire, where the goods insured were so endangered as to require removal to a place of safety, the goods thus removed to the new location were covered by the policy for the ensuing five days only. Thus, under the terms of the policy, the plaintiff’s goods which were removed to the Stúart Hotel on January 39, 1917, were protected by the policy for the' ensuing five days only. The-evidence shows, however, that the goods thus removed were destroyed by fire on February 13, 1917, fifteen days after their removal. The plaintiff seeks' to luid the company liable under the alleged parol consent of the agent of the insurer to the removal, and more especially by .his subsequent parol promise to indorse such removal in writing upon the policy. Under the terms of the policy, however, the insured was put upon notice that no agent-bad authority to waive any condition of the policy, except in writing indorsed upon or attached to the policy; and the insured therefore has no right to rely upon and waiver not made in that manner. Simonton v. Liverpool &c. Insurance Co., 51 Ga. 76; Lippman v. Ætna Insurance Co., 108 Ga. 393 (33 S. E. 897, 75 Am. St. E. 63). Furthermore, sections 3404 and 3470 of the Civil Code (1910) provide that a contract of lire insurance, to be binding, must be in writing, and a contract which a statute requires to be in writing can not exist partly in parol and partly in writing, and an agreement to alter such a contract must also be in writing. Athens Mutual Insurance Co. v. Evans, 133 Ga. 703 (64 S. E. 993). Lippman v. Ætna Insurance Co., supra.

While it is true that in the case of Western Assurance Co. v Williams, 94 Ga. 138 (31 S. E. 370), it was held that “The consent of a fire insurance company, given, whether in writing or in parol, by its duly authorized agent, and acted upon by the insured, that the goods insured might be moved into another building without vitiating the policy, is, if sufficiently proved, binding upon the company notwithstanding stipulations in the policy that bio 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 indorsed 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 privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached/ ” the Supreme Court was there dealing with the question raised upon the refusal of the lower court to sustain a demurrer to a petition wherein it was alleged that the. waiver was made in writing by a duly authorized agent of the defendant. Mr. Justice Simmons, speaking for the court, said: “Although this clause of the policy excludes any inference that the powers of the agent extend to the waiver of conditions contained in the policy, except in the mode prescribed therein, yet it may be shown that such authority was-in fact granted; and the waiver, whether in writing or parol; when given by a duly authorized agent and acted upon by the insured,- is, if sufficiently proved, binding upon the company, notwithstanding the stipulations above quoted. This clause put the insured upon notice that the agent has no authority to waive a condition of the policy except in writing, attached to the policy, and the insured would have no' right to rely upon any waiver not made in that manner, unless it could be shown that the company did’ in fact authorize the agent to make the waiver otherwise. To establish such authority on the part of the agent, the insured would have to show that it was expressly granted by the company in the given instance, or would have to show some previous course of dealing in similar cases by the agent with the company’s consent, manifested by ratification or otherwise.” The evidence to the plaintiff, in this case fails to show an express grant of such authority by the company in this instance, or any previous course of dealing in similar eases by the agent with the ■ company’s consent, manifested by ratification or otherwise, but, to the contrary, the evidence shows that it was the general custom of the agent at this place to indorse such a removal in writing upon the policy. So far as appears from the report in the cases of City Fire Insurance Co. v. Carrugi, 41 Ga. 660, and Clay v. Phœnix Insurance Co., 97 Ga. 44 (22 S. E. 901), the policies there involved contained no such express limitation upon the authority of the agent as is contained in the policy sued upon in this case, ánd what was there held is therefore not in conflict with the ruling here made. See Lippman v. Ætna Insurance Co., supra, and Johnson v. Ætna Insurance Co., 123 Ga. 404, 409 (51 S. E. 339, 107 Am. St. E. 92).

Counsel for the plaintiff insist that the defendant is estopped from setting up the defense relied on in this case, by reason of the fact that out of the premium paid by the plaintiff the defendant-retained an amount sufficient to include the date on which the loss is alleged to have occurred, when the agent of the defendant had notice that the goods had-in fact been removed. Even if such an amount was retained by the defendant, this would not estop it from setting up this defense. ' It is true that it is a' well-settled principle of law that notice to a duly authorized agent of an insurance company, when given at the time the policy is issued, is notice to the company; and had the policy in this ease been issued by the defendant with notice to its agent, at the time the policy was issued, that the goods thereby insured were not contained in the. house therein specified, and had the company received and retained the premium with such notice to the agent, it would be estopped from setting up such defense; but this is not the case here, and the question of estoppel is not involved. Johnson v. Ætna Insurance Co., supra. The contract of insurance in this case had already been made, and both parties were on notice as to its terms. The insured was bound to know what were the rights of the company, and that none of them could be relinquished save in the manner pointed out-in the policy; and he on his part can not be heard to urge that there was a waiver by the company, unless it was made in the manner required.

Judgment affirmed.

Wade, C. J., and Luke, J., concur.