dissenting.
The majority opinion relies heavily upon Whitmire v. Colonial Life &c. Ins. Co., 172 Ga. App. 651, 652 (323 SE2d 843) (1984), which in turn cites cases such as Sasser v. Coastal States Life Ins. Co., 113 Ga. App. 17 (147 SE2d 5) (1966), and Thomas v. Union Fidelity &c. Ins. Co., 168 Ga. App. 267 (1) (308 SE2d 609) (1983). These three cited cases contain limitation of the agent’s authority provisions in the application. The majority mistakenly places the instant case in the category of the three cited cases; however, the case under consideration belongs in an entirely different line of authority.
“Absent a clear and unequivocal limitation on the authority of an agent of an insurance company, and absent fraud and collusion between the agent and the prospective insured, the actual knowledge of the agent of facts amounting to innocent misrepresentations in the application for insurance is imputed to the insurer, and the insurer will be estopped to assert that it would not have issued the policy if it had knowledge of the true facts.” (Emphasis supplied.) Allstate Ins. Co. v. Anderson, 121 Ga. App. 582 (2) (174 SE2d 591) (1970). In ac*407cord Reserve Life Ins. Co. v. Meeks, 121 Ga. App. 592 (174 SE2d 585) (1970); Chester v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 599 (174 SE2d 582) (1970). All three of these cases, as in the case sub judice, involve factual situations where there is no limitation of authority of the agent written in and appearing on the face of the application; therefore, a different rule obtains. Where there is no limitation of authority in the application, the agent has absolute power to waive any requirement listed in the application. Whatever the agent may orally tell the applicant may in fact amend and change the provisions contained in the application, as the agent is in reality speaking without restriction for the company and literally is the company where the latter has not restricted the former’s authority.
Decided December 3, 1985 Rehearing denied December 20, 1985 Emitte H. Griggs, David B. Higdon, for appellant. Milton Harrison, Will Ed Smith, Billy W. Walker, for appellees.It should be noted that the last three cited cases are whole court cases and are binding authority upon this court. Further, on summary judgment the insurer must negate an essential element of plaintiff’s case to escape a jury trial. The insurer here, as movant, had the affirmative duty to prove that the agent did not make any oral representations to the applicant to the effect that none of the provisions and requirements of application was waived. The insurer did not move to strike the daughter’s affidavit; therefore, in my opinion, when considering all the evidence, including her affidavit, a jury could conceivably find that some of the provisions could have been waived so that a binding contract of insurance existed. The trial court did not err in denying the insurance company’s motion for summary judgment.
Since the insurance company did not move to strike the contents of Faye Floyd’s affidavit and certain portions of Ms. Brown’s, the trial court should and would have considered this evidence against the insurance company.
I would affirm in Case No. 70683 and reverse in Case No. 70684.
I am authorized to state that Judge Pope and Judge Benham join in this dissent.