concurring. 1. The holder of an insurance policy is chargeable with knowledge of its conditions; and this is none the less true where he voluntarily parts with actual possession of the policy by pledging it as security for a loan.
2. Misrepresentations as to the legal effect of a contract and the obligations imposed thereby, where there is no fiduciary relation between the parties and the circumstances are not such as to give the plaintiff a legal right to rely without further question upon the statements of the defendant, will not support an action of deceit.
All the conditions and stipulations of the policy were well known to both the defendants, before and since the fire; but they “ were not well known to petitioner, for the reason that at the time of said fire said policy of insurance was in the hands of the Southern Messenger Service, to which it had been transferred as additional security for a loan of money, made before said fire, with the consent of said Phenix Insurance Company, written and attached to said policy; and petitioner was therefore not in actual possession of said policy at the time of said fire.” Immediately after the fire, the insurance company or its agent, Waldo, went to the Southern Messenger Service, paid off the loan, and took up the note and security deed, “ and took possession of said policy of insurance on said house and retained the same, and has ever since kept the same, against' your petitioner’s wishes and without her consent.” Since then she has paid off the loan and taken up the note and deed, but the insurance company, through Slaton, its attorney, refused to return the policy to her, and still holds it. After repeated efforts to collect the amount fixed by the arbitrators as the loss occasioned by the fire, she brought suit against the insurance company upon the policy, setting out in her declaration “the furnishing of said appraisement, and the further fact that such arbitration or appraisal amounted to waiver on the part of said company of further proofs of loss in writing, as required by the strict terms and conditions of said policy.” The petition in that case was dismissed on demurrer, and the judgment of dismissal was affirmed by the Supreme Court of Georgia. (110 Q-a. 300.) But for the representations of Waldo, she would have complied with the conditions of the policy; and if thereafter the insurance company had failed to pay her the sum of $870.04, she could have compelled its payment in the courts. The misrepresentations made by Waldo were made wilfully and knowingly, and for the purpose of inducing her not to make proofs of loss as required by the policy, and in acting upon the misrepresentations she acted to her injury, in that she lost her right to collect the amount of the loss fixed by the arbitrators. Waldo “ was under a duty to petitioner, knowing as he did that she had no legal adviser, and that she was a woman, in'bad health, and not accustomed to such business, and knowing further that petitioner trusted him and accepted all his statements as the truth, because she had obtained said policy from him, and knew that he was familiar with the conditions of the same, and considered him a perfect gentleman and an honest man, to tell her, when she stated to him that she had complied with all the conditions of the policy and had done all that was required of her and -had made all the proof about the house, that she had other proof to make; and the failure of . . Waldo' to answer petitioner, when she made this statement, would in itself give petitioner a right to recover against him.” The insurance company is equally responsible to petitioner, in that it was a party to the fraud and. misrepresentations of Waldo, “anÁTfor the further reason that . .«Waldo was the agent of said . . insurance company, having the right to waive and extend the provisions of said policy requiring written proof of loss, and had the right to pay petitioner at once upon the return of said appraisal [of] the amount of said loss, and could have done so; and in all the transactions before stated he acted within the scope of his authority as such agent;” and the insurance company ratified his conduct and was benefited thereby. She did not ascertain that she could not collect the insurance money, and therefore was not aware of the falsity of Waldo’s representations, until the affirmance by the Supreme Court of the judgment of the city court of Atlanta, dismissing her petition against the insurance company. She prayed judgment against the defendants for $870.04, the amount of the loss found by the arbitrators, with interest from February 10, 1898, and attorney’s fees. The defendants filed separate demurrers, both general and special, and the court sustained them “ on all the general grounds thereof, the grounds of special demurrer not being passed upon.” The plaintiff excepted. J. L. Travis and Westmoreland Brothers, for plaintiff. Slaton & Phillips, for defendants.