(dissenting) :
The cardinal question on this appeal is simply whether the findings of. fact on the part of the court below are supported by any competent evidence in the record. Being of the view that his key and controlling findings are so supported, I am compelled to dissent.
Many of the findings of fact are, beyond dispute, fully supported by the evidence and I shall here deal with only two principal findings which are said to be unsupported by any evidence. They are as follows: (1) McNair knew on February 7th when he took the application and issued the binder that a previous liability policy had been canceled; (2) that appellant was not relying on the truth of the statements contained in the application when on March 12th it wro.te Ausborn declining to issue the policy, but, in effect, offering to provide coverage through the date of the collision upon payment of the premium for the interim period.
With respect to the first finding, McNair testified on direct examination that he had no knowledge of the cancellation of the previous policy, but his testimony as a whole-is clearly susceptible of the inference that he, in fact, did know. He frequently was called in at the automobile agency where the application was taken and he wrote a lot of his business there. The application itself showed that the car had been purchased the previous month. McNair was aware of the requirement of the agency that the car could not be driven off the lqt unless covered by liability insurance, and that it could not be driven therefrom on the date in question in the absence of such insurance. To quote briefly from his testimony:
“Q. You knew that was their rule, and when you did business with this boy on February 7th yqu told him that *650he was covered so that they would turn the car loose to him again ?
“A. I issued a binder, I Sure did. That’s right.”
Key and important facts found to be known to McNair when the binder was issued were the cancellation of the priqr policy and the one actual conviction of Ausborn for traffic violation followed by a license suspension. McNair’s knowledge was imputable to appellant and it was charged not only with notice of what McNair knew, but also with what he could have known once put upqn inquiry by facts disclosed to him. Mickle v. Dixie Sec. Life Ins. Co., 216 S. C. 168, 57 S. E. (2d) 73; Ellison v. Independent Life & Accident Ins. Co., 216 S. C. 475, 58 S. E. (2d) 890; Huestess v. South Atlantic Life Ins. Co., 88 S. C. 31, 70 S. E. 403.
As to the second challenged finding, there are conflicts in the testimony of appellant’s witnesses on this point. Mr. Shealey of its underwriting department, who' wrote the letter of March 12th, testified on direct examination that the application was in the process of being rejected, at the time appellant received notice of the accident, solely on the gro.und that appellant did not insure unmarried males under age twenty-five. His testimony in this respect is in conflict with what the agent McNair said and did. McNair’s testimony was to the effect that appellant would and did insure such individuals, if other insurance was purchased by them when buying liability insurance. Concurrent with the application for liabilty insurance McNair toqk from Ausborn an application for life insurance with a company which is obviously affiliated with appellant and represented by both Shealey and McNair. He was paid and retained a premium therefor.
When Shealey wrote the letter, he was, of course, charged with the knowledge of the informatiqn previously obtained by McNair on February 7th, and on cross examination he admitted that when he wrote the letter, he had already received information to the effect that Ausborn was a reckless driver and had reason to believe that he was guilty of traffic *651violations, contrary to the statements contained in the application. In view of the foregoing, I think it cannot be soundly said that there is no evidence supporting the findings of the judge that appellant was not relying on the truth of the statements in the application when the letter was written.
Aside from the findings in this respect being supported by evidence, appellant’s copiplaint contains, I think, a clear judicial admission to that effect. This action was commenced on January 4, 1966, long after appellant had fully investigated all facets of the matter. Paragraph 7 of the complaint alleges,
“The reason the said policy was not issued was because of the false statements made by the defendant Melvin H. Ausborn to the plaintiff in said application”
The quoted allegation is, of course, binding upon appellant. It specifically alleges the reason for the letter of March 12th, and is, I think, aside from the evidence, conclusive of the fact that appellant was not, in fact, relying on the truth of the statements contained in the application when the said letter was written.
To briefly summarize the highpoints, there is evidence to support the following key facts. Appellant knew at the time of the issuance of the binder of Ausborn’s one actual conviction, the suspension of his drivers license, and the cancellation of a prior liability policy; and when the letter of March 12th was written, it knew that there were untrue statements in the application; that Ausborn was a reckless driver, and that in all probability he had a record of other traffic violations. Following the letter of March 12th, in spite of the foregoing knowledge on its part, it accepted and retained the premium for the interim or binder period, and represented to Ausborn and all other interested parties that he, in fact, had coverage until December 30th following the accident when1 it decided to deny coverage. These facts clearly support the ultimate conclusion of the judge that *652appellant had waived its right to deny coverage because of any alleged false statements in the application.
In view of my conclusion as to waiver, it is not really necessary to discuss estoppel fully. In brief, however, I think the facts make out a clear case for the application of the doctrine of estoppel. The tort plaintiffs and their insurer, State Farm, are parties to the action. In the absence of coverage by appellant, State Farm will be required to pay the judgments of the tort plaintiffs, under its uninsured motorist coyerage, and will become subrogated to their rights against Ausborn. These parties have clearly altered their positions to their detriment as a result of the conduct of the appellant. But for the assurance of coverage on the part of the appellant, the record shows that Ausborn’s automobile would have been attached and that it had a value following the accident in excess of $2,000.00. By the time coverage was denied, the automobile had long since been disposed of, and no doubt greatly depreciated even if it could be found. In addition to the automobile, the evidence reflects that Ausborn was possessed of substantial assets at the time of the accident and it is clearly inferable from the record that such assets have now been largely dissipated.
Brailsford, J., concurs.