insurance, § 542

Evidence, § 1588 -sufficiency. 2, Under the facts set out in subdivision (a) of the first question (infra) a jury would be authorized to find that the insurer was estopped; and the fact that the cashier of the bank making the loan to the insured, for which purpose the latter wished authority indorsed upon the policy, was also agent of the insurer, would not alter the case, in the absence of fraud or collusion.

[See 14 R. C. L. 1179.]

Insurance, §§ 480, 497, 499 - provision against waiver construction.

3. Clauses in insurance policies which prohibit waivers unless in

dorsed thereon refer only to the provisions which enter into the contract of insurance, and do not affect conditions which are to be performed after loss, such as furnishing proofs of loss and giving notice. (a) These may be expressly waived, or waived by conduct inconsistent with an intention to enforce a strict compliance with the condition, by which the insured is led to believe that the insurer does not intend to require such compliance. (b) An adjuster sent to adjust a loss presumably has authority to waive proof of loss.

[See 14 R. C. L. 1345, 1347; 3 R. C. L. Supp. 387; 4 R. C. L. Supp. 965.]

"It is a condition of this policy that it shall be null and void if the interest of the assured in the property be other than unconditional or sole ownership, or if the subject of this insurance be or become encumbered by any lien or mortgage except as otherwise indorsed hereon.

"It is a condition of this policy that failure on the part of the assured to render such sworn statement of loss to this company within sixty days of the date of loss (unless such time is extended in writing by the company) shall render such claim null and void.

"No officer, agent, or other repre

sentative of this company shall have power to waive any of the terms of this policy, unless such waiver be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the assured, unless so written or atsured, unless so tached."

(1) Where personal property is insured against loss or damage from fire under an insurance policy containing the above provisions, and the insured during the life of the policy notifies one who is "agent" of the insurer, with whom the policy has been left by the insured for safekeeping for the insured's benefit, of his intention to encumber the property with a mortgage or a bill of sale as security for a loan, and requests such agent to make such necessary entry and indorsement in writing upon the policy as will protect the property against loss from fire when so encumbered; and the

agent assures the insured that this will be done; and the insured allows the policy to continue to remain in the hands of the agent, and, relying upon the agent to carry out such instructions, and without knowledge that such instructions have not been carried out, encumbers the property, will the insurer, in the event that the agent fails to make any written indorsement or attach any writing to the policy, be, as a matter of law, estopped from defending against a loss thereunder, upon the ground that such entry had not been made by indorsement upon the policy or by a writing attached thereto, or would a jury be authorized to find that the insurer was so estopped?

(a) In a suit by the insured against the insurer, to recover under an insurance policy containing the above provisions for a loss by fire of the property insured, which, after the policy had been issued, had been encumbered with a mortgage to secure a loan made to the insured, where no indorsement or writing was attached to the policy giving the insured permission to encumber the property or providing that the policy should continue to cover the property when so encumbered, was the insurer estopped, under the following state of facts, as a matter of law, from setting up this defense, or would a jury be authorized to find that the insurer was so estopped?

When the policy was issued the insured left it for safe-keeping with the insurer's local agent through whom it was issued. Later, during the life of the policy, the insured approached the individual who had issued the policy to him, and who was then the cashier of a bank, for the purpose of negotiating a loan to be secured by a bill of sale or mortgage upon the property insured and covered by the policy, and who was also still the "agent" of the insurer, but whose duties as such "agent" were not defined. The insured, when making application for the loan, told this person to whom he made the application that he

would "give him a showing on the car and some mules. He told me, 'All right.' I told him after he made the note to be sure and make the proper indorsement on the policy. I told him to make the insurance in protection of the bank. The car was insured then, and I told him to be sure and keep the policy up for me, and to make it payable to the bank -proper indorsement for the protection of the bank. He told me he would; he said, 'I will fix it all right.' Of course, I thought he did, and I didn't know it until the time of the trouble. I always thought it had been done. I gave orders to do it, and he agreed to do it." Whereupon the insured executed a mortgage in favor of the bank upon the property covered by the policy. This individual, who still at the time had the policy in his possession for safekeeping for the benefit of the insured, and who at the time "carried on in connection with [his] business as cashier at the bank the business of fire insurance, [and] represented the [insurer]," failed to make any indorsement on the policy, or to attach any writing thereto. This "agent," in his testimony, which was undisputed, said: "I drew the paper for [the insured] to sign to loan him some money. He said something to me about insurance on this property; he said he had it insured, and said I could fix that up for him all right; he said, 'Fix it so as to protect the bank;' he said for me to fix it. I told him I would look after it all right and make the indorsement. I agreed to indorse this policy in favor of the bank. By indorsing it I mean putting an indorsement on it-a loss clause payable to the bank as its interest might appear. I am familiar with that form. I did not do it. I don't know why; I put it up and really forgot it, and never did do it; just forgot it; just negligence on my part. [The insured] told me to do it. This policy from the date of its birth was in the vault of the bank; [the insured] never had it. I don't reckon he had ever seen it, or knew what company

An agent's oral consent and promise to make an indorsement on the policy do not amount to a waiver of the provision in the policy in regard to encumbrances.

Long v. Hartford F. Ins. Co. 25 Ga. App. 24, 102 S. E. 379; Athens Mut. Ins. Co. v. Evans, 132 Ga. 703, 64 S. E. 993; Williams v. Atlas Assur. Co. 22 Ga. App. 661, 97 S. E. 91; Sparks v. National Union F. Ins. Co. 23 Ga. App. 38, 97 S. E. 462.

Plaintiff alleged compliance with the terms of the policy in regard to furnishing proofs of loss. He cannot, therefore, prove waiver. McLeod v. Travelers Ins. Co. 8 Ga. App. 765, 70 S. E. 157.

Messrs. F. S. Burney, C. Henry Cohen, and R. S. Cohen, for plaintiff:

The circumstances in this particular case make an estoppel in pais on the part of the company, which prevents it from setting up as a defense the fact that the unconditional ownership was not in the plaintiff.

Simonton v. Liverpool, L. & G. Ins. Co. 51 Ga. 77; Johnson v. Etna Ins. Co. 123 Ga. 404, 107 Am. St. Rep. 92, 51 S. E. 339; Lee Blakemore v. Lewelling, 281 Fed. 953; Twin City F. Ins. Co. v. Stockmen's Nat. Bank, 261 Fed. 475; 14 R. C. L. Ins. ¶ 355; Manchester v. Guardian Assur. Co. 151 N. Y. 88, 56 Am. St. Rep. 600, 45 N. E. 381; Morrison v. Insurance Co. of N. A. 69 Tex. 353, 6 S. W. 605, 5 Am. St. Rep. 63; Hayward v. National Ins. Co. 52 Mo. 181, 14 Am. Rep. 400; Bigelow, Estoppel, 6th ed. 718.

If insurer or an authorized agent consents to changes, which are required to be indorsed on a policy, and promises to make the necessary indorsement, having access to the policy for this purpose, but fails to måke the indorsements through mistake, oversight, or neglect, the insurer will nevertheless be bound, if not by a waiver, at least by an estoppel in pais.

Dupuy v. Delaware Ins. Co. 63 Fed. 680; Queen Ins. Co. v. Straughan, 70 Kan. 186, 109 Am. St. Rep. 421, 78 Pac. 447; Copeland v. Dwelling-house Ins. Co. 77 Mich. 554, 18 Am. St. Rep. 414, 43 N. W. 991; Pollock v. German F. Ins. Co. 127 Mich. 460, 86 N. W. 1017; Manchester v. Guardian Assur. Co. 151 N. Y. 88, 56 Am. St. Rep. 600, 45 N. E. 381; Melvin v. Insurance Co. of N. A. 2 Luzerne Leg. Reg. 219; American Cent. Ins. Co. v. McCrea,

8 Lea, 513, 41 Am. Rep. 647; German Ins. Co. v. Cain, Tex. Civ. App. —, 37 S. W. 657; Home Mut. Ins. Co. v. Nichols, Tex. Civ. App. —, 72 S. W. 440; West v. Norwich Union Fire Ins. Soc. 10 Utah, 442, 37 Pac. 685; Henschel v. Oregon F. & M. Ins. Co. 4 Wash. 476, 30 Pac. 735, 31 Pac. 332, 765; Henschel v. Western Assur. Co. 4 Wash. 816, 30 Pac. 736; Henschel v. Hamburg-Madgeburg F. Ins. Co. 4 Wash. 817, 30 Pac. 736.

Hines, J., delivered the opinion of the court:

The policy of the fire insurance involved in this case contains these provisions: "It is a condition of this policy that it shall be null and void if the interest of the assured in the property be other than unconditional or sole ownership, or if the subject of this insurance be or become encumbered by any lien or mortgage except as otherwise indorsed hereon. It is a condition of this policy that failure on the part of the assured to render such sworn statement of loss to this company within sixty days of the date of loss (unless such time is extended in writing by the company) shall render such claim null and void. No officer, agent, or other representative of this company shall have power to waive any of the terms of this policy, unless such waiver be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the assured unless so written or attached."

The insured notified the agent of the insurer, with whom the policy had been left by the insured for safe-keeping for the insured's benefit, of his intention to encumber the property with a mortgage or bill of sale as security for a loan, and requested the agent to make the necessary entry and indorsement in writing upon the policy to permit such encumbrance. The agent assured the insured that this would be done. The policy remained in the hands of the agent. Relying upon the agent to carry out such instructions, and without knowledge that such in

structions had not been carried out, the insured encumbered the property. The agent failed to make any written indorsement or to attach any writing to the policy permitting such encumbrance. Under the above eircumstances, is the insurer, as a matter of law, estopped from defending against the loss under the policy upon the ground that permission to the insured to encumber the property insured had not been indorsed upon the policy, nor had any writing been attached thereto permitting such encumbrance, and would a jury be authorized to find that the insurer was so estopped?

There is great diversity of opinion as to the effect to be given to the provision of this policy last above quoted. One group of decisions tends to favor the insurer, by adhering to a strict and literal construction of this stipulation. The other group, leaning to the insured, tends to nullify the effect of such provisions. 32 C. J. 1318, § 570.

Insurance-provision against waiver of conditions.

But in this state this provision of the policy is valid and binds the insured. Morris v. Orient Ins. Co. 106 Ga. 472, 33 S. E. 430; Lippman v. Ætna Ins. Co. 108 Ga. 391, 75 Am. St. Rep. 62, 33 S. E. 897; Athens Mut. Ins. Co. v. Evans, 132 Ga. 703, 64 S. E. 993; Beasley v. Phoenix Ins. Co. 140 Ga. 126, 78 S. E. 722; Nowell v. British-American Assur. Co. 17 Ga. App. 46, 85 S. E. 498; McAfee v. Dixie F. Ins. Co. 18 Ga. App. 192, 89 S. E. 181; Long v. Hartford F. Ins. Co. 25 Ga. App. 24, 102 S. E. 379.

But the insurer may be estopped from relying upon this provision as a defense to an action for the recovery of a loss under its policy of insurance. Under the circumstances recited in the first question propounded by the court of appeals, we think the insurer would be estopped from defending against a loss under the policy. If the insurer or his authorized agent consents to changes, permission to make which is required to be indorsed on the policy,

and promises to make the necessary indorsement, having access to the policy for this purpose, upon which promise the insured relies and acts, but the agent fails to make the indorsement, through mistake, oversight, neglect, or fraud, the insurer will nevertheless be bound, if not by waiver, at least by an estoppel in pais. 3 Cooley, Briefs on Ins. p. 2617; Manchester v. Guardian Assur. Co. 151 N. Y. 88, 56 Am. St. Rep. 600, 45 N. E. 381; Pollock v. German F. Ins. Co. 127 Mich. 460, 86 N. W. 1017; Home Mut. Ins. Co. v. Nichols, Tex. Civ. App. —, 72 S. W. 440; German Ins. Co. v. Cain, Tex. Civ. App. -, 37 S. W. 657; West v. Norwich Union Fire Ins. Soc. 10 Utah, 442, 37 Pac. 685; American Cent. Ins. Co. v. McCrea, 8 Lea, 513, 41 Am. Rep. 647; German American Ins. Co. v. Hyman, 42 Colo. 156, 16 L.R.A. (N.S.) 77, 94 Pac. 27; Rochester German Ins. Co. v. Schmidt (C. C.) 151 Fed. 681; Virginia F. & M. Ins. Co. v. Richmond Mica Co. 102 Va. 429, 102 Am. St. Rep. 846, 46 S. E. 463; Lechler v. Montana L. Ins. Co. 48 N. D. 644, 23 A.L.R. 1193, 186 N. W. 271; Ætna L. Ins. Co. v. Fallow, 110 Tenn. 720, 77 S. W. 937; Schmurr v. State Ins. Co. 30 Or. 29, 46 Pac. 363; Wilson v. Commercial Union Assur. Co. 51 S. C. 540, 64 Am. St. Rep. 700, 29 S. E. 245; Liverpool & L. & G. Ins. Co. v. Sheffy, 71 Miss. 919, 16 So. 307; Etna Ins. Co. v. Indiana Nat. L. Ins. Co. 191 Ind. 554, 22 A.L.R. 402, 133 N. E. 4; People's Nat. F. Ins. Co. v. Jackson, 155 Ky. 150, 159 S. W. 688; Eagle Fire Co. v. Lewallen, 56 Fla. 246, 47 So. 947; Thompson v. Traders' Ins. Co. 169 Mo. 12, 68 S. W. 889.

But it is said that this court has ruled to the contrary of what is said above; and to sustain this contention the insurer relies upon the cases of Simonton v. Liverpool, L. & G. Ins. Co. 51 Ga. 76; Lippman v. Ætna Ins. Co. 108 Ga. 391, 75 Am. St. Rep. 62, 33 S. E. 897; Johnson v. Ætna Ins. Co. 123 Ga. 404, 107 Am. St. Rep. 92, 51 S. E. 339; Athens Mut. Ins. Co. v. Evans, 132 Ga. 703,