Athens Mutual Insurance v. Evans

Fish, C. J. (After stating the facts.). 1. The law to be applied to the facts alleged in the petition is well settled, although its application to these facts makes this a hard case for the defendant in error. When the insurance policy was. issued the legal title to the property insured was in Evans, and, according to a provision in the policy, there it had to remain during the period of time covered by the contract,, in order for the policy to.still continue in force, unless he died in — 707 — the meantime, or by agreement of the insurance company, indorsed on or added to the policy, a change in the title was allowed. This is clear from the stipulation in the policy, that, unless otherwise provided by agreement indorsed thereon or added thereto, it should be void, “if, any change, other than by the death of an insured, take place in the interest, title, or posession of the subject of insurance (except change of occupants without increase of hazard), whether by .legal process or judgment, or by voluntary act of the insured, or otherwise.” After the issuance and acceptance of the policy, the title to the property insured was changed by the holder of the policy, by his conveying the same to the Goluckes, to secure an indebtedness which he owed them for its construction. TJnlessy therefore, the contentions of the defendant in error as to waiver or estoppel be sound, the execution and delivery of this security deed, without the consent of the insurance company indorsed on or added to the policy, violated the inhibition as to any change in the title of the property and rendered the contract of insurance void. Phœnix Ins. Co. v. Asberry, 95 Ga. 792 (22 S. E. 717); Orient Ins. Co. v. Williamson, 98 Ga. 464 (25 S. E. 560). 2. As the effect of the above-mentioned provision of the policy was to prohibit any change in the title of the property, without the written consent of the insurer, indorsed on ,or added to the policy, it would seem of itself sufficient to show that the agent of the company who acted for it when the policy was issued had no power to give a mere parol permission for a transfer of the title. But the policy, in its concluding clause, dealt directly with the question of waiver, as follows: “This policy is made and accepted subject to the foregoing stipulations and conditions, and no officer, agent, or other representative of this company shall have the 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 he claimed by the insured unless so written or attached.” It is — 708 — clear that under this provision the agent of the insurance company could not have orally waived the condition rendering the policy void, if any change should be made in the title to the property, without the consent of the company expressed as the policy required, even if he had, as is not the case here, in express terms undertaken to do so. He had no power to talk away any provision or condition expressed in the policy. They were "all beyond the reach of any oral declaration or representation which he might make. The rulings made in Morris v. Orient Insurance Co., 106 Ga. 472 (33 S. E. 430), and Lippman v. Ætna Insurance Co., 108 Ga. 391 (33 S. E. 897, 75 Am. St. R. 62), are directly in point here. In each of those cases the policy of insurance contained the same restriction upon the power of a representative of the.insurance company to waive any provision or condition of the policy as that, above quoted from the policy now under consideration, and in each it 'was provided that, unless otherwise provided by agreement indorsed on or added to the policy, the same should be void, if the insured then had, or should thereafter procure, anjr other contract of insurance on the property covered in whole or in part by the policy. It was held in both cases that a mere oral permission to the insured by the agent who issued the policjq to take out additional insurance, given at the time of issuing the policy, was not binding upon the company, and did not estop it from setting up as a defense to an action upon the policy that the insured, in violation of its terms, had taken out additional insurance. 3, 4. Counsel for the defendant in error admits that, under these decisions, Quinn, the agent of the company, could not have orally waived a future forfeiture, but contends that the policy does not set forth the true contract between the parties, and that, without reformation, the contract ought to be enforced, not according to its plain and unambiguous terms as written, but according to the intention of the parties at the time it was made, and that their intention then was that Evans, the insured, should, have the right to execute the security deed in question. As we understand counsel, this contention is based upon the allegations of the petition as to the conversation which occurred between Evans and Quinn, the agent of the company, prior to the issuance of the policy. There is nothing in the petition which shows that — 709 — there was any agreement by the company, or even by Quinn, its agent, that the provisions of the policy should be otherwise than as they are. It is merely alleged that Quinn was informed by Evans that he had the house built by C. H. Golucke & Son, at a cost of some $750, and still owed them therefor, and had agreed that they should hold a deed to the premises, to secure them, until this debt was paid; and that thereupon “Quinn replied that that would not interfere with [Evans’s] insuring the property, and that the same would protect both [him] and said Goluckes.” This falls far short of an allegation that Evans and Quinn agreed that the policy should contain a provision authorizing Evans to convey the property to Golucke & Son for the purpose here indicated. From the petition it appears that Evans merely stated certain facts to Quilín, and he simply expressed his opinion that the existence of those facts would not interfere with Evans’s insuring the property,- and that, if he did, the policy would protect both himself and Golucke & Son. But even if there were positive allegations in the petition that there was an oral agreement between these parties that Evans should have the right to change the status of the title of the property as he afterwards did, we have seen that the agent of the insurance company could not thus waive the condition as to forfeiture of the policy upon a change of title, not made in conformity to the requirements of the policy. Again, it is well settled that, in the absence of fraud, accident, or mistake, none of which is alleged, all parol negotiations and agreements prior to or contemporaneous with the execution of a written contract are either merged therein or annulled thereby, and the writing alone must be considered as evidence of the contract. There is, however, another firmly established rule the existence of which is fatal to this contention of the defendant in error; .and that is, that a contract which a statute requires to be in writing can not exist partly in parol and partly in writing. The law of this State expressly requires a contract of fire insurance to be in writing, and such a contract is not valid unless it is in writing. Civil Code, §§.2022, 2089; Clark v. Brand, 62 Ga. 23; Thomas v. Funkhouser, 91 Ga. 478 (18 S. E. 312); Planters Asso. v. DeLoach, 113 Ga. 802 (39 S. E. 466); Delaware Ins. Co. v. Pennsylvania Fire Ins. Co., 126 Ga. 380 (55 S. E. 330). As said by Mr. Justice Lumpkin in the case last- cited, at page — 710 — 389, “-under our statute it is contemplated that the whole contract of insurance shall be in writing.” So, even if the agent had possessed unrestricted powers as to the making of the contract of insurance, and it had been alleged that by fraud, accident, or mistake an agreement that the insured might transfer the title of the property to Golucke & Son had been left out of the policy, the contract would have to be reformed before this agreement Could become a part of the same. There is no effort whatever to reform, or to change in any particular the written contract, but the alleged right to recover is based upon the policy as it stands, and the effect of one of its stipulations as applied to the' facts is sought to be obviated by the mere oral statement of the agent of the insurer as to what the legal effect of the policy would be relatively to these facts. 5. It is further contended that the petition shows that the insurance company, through its agent who represented it in the transaction with Evans, knew that the house which was the subject-matter of insurance had been built by Golucke & Son for Evans upon credit, under an agreement which provided that he was to make them a deed to the premises to secure the debt thus created, and that the contractors had fully performed their part of this contract and Evans was' indebted to them for the erection of the house; and therefore that the policy was issued by the company with full knowledge on its part that Golucke & Son were entitled to receive this security deed from Evans, and that he was both morally and legally bound to execute and deliver the same to them. Hence it is sought to bring this case within the well-settled rule, that although a policy of insurance may contain a provision which declares it to be void if a specified condition exists when it is issued, yet if the agent of the insurance company ’who represented it in the transaction with the insured knew, at the time the contract was entered into, that such condition did then exist, the policy will, so far as this provision is concerned, be held to be valid and enforceable. The knowledge of the agent, who acts for the insurer when the policy is issued, of existing conditions which enter into the validity of the contract is the knowledge of his principal; and if the policy is issued with ■knowledge of a fact or condition which by a stipulation in the contract would render it void, the insurer is held to have waived — 711 — the existence of such fact .or condition in its application to the provisions of the policy. Otherwise the insurer would knowingly issue and accept pay for a policy v’oid in its very inception, thereby practicing a fraud upon the insured. Mechanics Ins. Co. v. Mutual Bldg. Asso., 98 Ga. 262 (25 S. E. 457); Johnson v. Ætna Ins. Co., 123 Ga. 404 (51 S. E. 339, 107 Am. St. R. 92). In the present case, however, the policy was not, under, facts known to the insurer, according to its terms, void when it was issued. On the contrary, it was then perfectly valid; for if the house had been, without fault of the insured, • destroyed by fire, in the interval of time between the issuance of the policy and the making of the security deed to Golueke & Son, the company would have been liable to the insured under its contract. It was the subsequent act of the insured which invalidated the policy. It matters not that this was an act which he was morally and legally bound to .perform, and that the agent of the insurer knew this when the policy was issued. The company issued the policy with a promissory warranty on the part of the insured, implied by his acceptance of the same with the condition as to subsequent change of title therein, that the title should remain as it then was, unless changed with the consent of the company expressed by indorsement upon or addition to the policy. If it be granted that the company knew, through knowledge imparted to its agent, that sooner or later Evans was bound to make the security deed to the contractors who built the house for him, he, on the other hand, knew that in order to execute this deed without thereby rendering the policy void, he must first obtain the written consent of the company, expressed in the manner pointed out by the policy. If' .he had applied for this consent and it had been 'refused, he could have surrendered the policy and collected from the company the difference between the amount of the premium which he had paid •and the customary short rate for the time during which the policy remained valid. Eor the policy provided for its cancellation “at any time at the request of-the insured; or by the company giving five days notice of such cancellation;” and that if it should be cancelled, “or become void or cease, the premium having been actually paid, the unearned portion [should] be returned on surrender of this policy or last renewal, this company retaining the customary short rate,” unless it should be cancelled by the com — 712 — pany giving notice, in which event, the company should retain only the pro rata premium. Counsel further contends, that, “substantially and in the eye of equity, there was no change in the title” when the security deed was made; that “the deed was but an evidence of a perfect equitible right to the title that Golucke had when the policy was issued, and that was recognized and waived by Quinn in issuing the policy.” It is unsound to contend that because, under the facts alleged, the Goluckes, having fully performed their part tof the contract with Evans', had the right to enforce specific performance of his agreement to convey the title of the property to them as security for the debt which he owed them, there was therefore no real, substantial change in the title when this deed was made. There had to be specific performance by Evans, either voluntarily omat the behest of the law, before the title could vest in the Goluckes. It follows that the court erred in overruling the demurrer. Judgment reversed. All the Justices concur.