The court did not err in sustaining the general demurrer and dismissing the action.
DECIDED JULY 31, 1941. Suit against the American Insurance Company of Newark, New Jersey, on a policy of automobile insurance issued by it to Mrs. L. M. Brooker was instituted in her name for the use of Mrs. Lois Jacobs and S. O. Jenkins. The policy insured against loss by fire, theft, etc., a described automobile truck as the property of Mrs. Brooker, and provided therein as to "title and ownership" that "except as to any lien, mortgage or other incumbrance specifically set forth and described in paragraph D of this policy this entire policy shall be void, unless otherwise provided by agreement in writing added hereto, if the interest of the assured in the subject of this insurance be or become other than unconditional and sole lawful ownership, . . or in case of transfer or termination of the interest of the assured other than by death of the assured, or in case of any change in the nature of the insurable interest of the assured in the property described herein either by sale or otherwise, or if this policy or any part thereof shall be assigned before loss." The policy also provided: "This policy is made and accepted *Page 714 subject to the foregoing stipulations and conditions, and to the following stipulations and conditions printed on back hereof, which are hereby specifically referred to and made a part of this policy together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto; and no officer, agent or other representative of this company shall have power to waive any provisions or conditions of this policy except such as by the terms of this policy may be the subject of an 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 be claimed by the assured unless so written or attached."
It further appeared from the petition as amended that on April 11, 1938, the policy sued on was issued and delivered to Mrs. Brooker as the assured with loss payable to S. O. Jenkins, mortgagee, as his interest might appear, and that Mrs. Brooker sold this automobile subject to the claim and lien of Jenkins to Mrs. Lois Jacobs, and surrendered to Mrs. Jacobs the policy of insurance sued on; that the policy was jointly written by the Grantham Insurance Agency of Glynn County and William Clifton of Darien as agents of the defendant, and was delivered by such agency to the assured who paid the premium to the agency; that when the truck was sold to Mrs. Jacobs notice thereof was given by Jenkins, acting jointly for himself and Mrs. Jacobs, to B. F. Grantham, the owner of the Grantham Insurance Agency, with the request that the policy be changed so as to protect the interest of himself and Mrs. Jacobs therein; that Grantham assured Jenkins that the change would be made and their interests would be fully protected from that date; that at the time of the notice to and assurance and promise by Grantham he was acting as agent for the defendant and the notice to and promise by him was notice to and assurance by the defendant, and was as effective in protecting the interest of the parties as though the policy had actually been changed as requested and promised; that thereafter on January 23, 1939, the truck insured was destroyed by fire; that its value at that time was $400, and the amount of insurance was $324, being the full face value of the policy less two per cent. per month depreciation for eight *Page 715 and a half months during which the policy had been in force; that on such date the interest of Jenkins in the truck amounted to $193.92 and that of Mrs. Jacobs to $130.08; that notice of loss was immediately given to the defendant and it immediately sent its adjuster to investigate the loss; that proper proofs of loss were executed and filed within sixty days as required by the policy, and all other terms and conditions of the policy were fully complied with; that demand for payment was made upon the defendant both by Jenkins and by Mrs. Jacobs, but the defendant failed and refused to pay their claim or any part thereof; that such claim was made more than sixty days before the filing of suit and, by reason of the failure and refusal of the defendant to pay such claim, Jenkins and Mrs. Jacobs have been forced to employ counsel to represent them in the prosecution of this suit; that a reasonable attorney's fee for such services would be $100.
The petition as amended further alleged that under the "title and ownership" provision of the policy, quoted above, the transfer of the title to the truck or the change in the ownership thereof would not in any way affect the right of Jenkins under the policy, irrespective of the notice to and promise by B. F. Grantham as agent of the defendant, but Jenkins would be entitled to recover the amount of his interest therein as such interest appeared at the time of the loss, irrespective of the change in ownership. It appeared from the policy a copy of which was attached to the petition, that "this policy shall be void unless countersigned by the duly-authorized agent of the company at Darien, Georgia;" and immediately thereunder the policy stated as follows: "Countersigned at Darien, Ga. This 11 day of Apr. 1938. . . William Clifton, agent." The prayer was that judgment be rendered against the defendant in favor of Mrs. Brooker for the use of Mrs. Jacobs and Jenkins in the sum of $324, together with interest, attorney's fees, and the statutory penalty provided by the Code, § 56-706; further, that if the court should hold that Mrs. Brooker "can not, because of the transfer of said policy without the policy being actually changed, recover any amount for the use of the said Mrs. Lois Jacobs, then that judgment be rendered in her favor against said defendant company for the use of the said S. O. Jenkins in the full and just sum of $193.92, representing his interest therein at the time of loss, together with interest thereon from January 23, 1939, attorney's fees, and penalty." *Page 716
To the petition as amended the defendant demurred on the ground that no cause of action was alleged, and because it appeared from the allegations that the policy sued on provided that any change in the title or ownership of the truck should void the policy unless such change was "provided by an agreement in writing" added thereto, and the petition showed that there had been a change of ownership without any written agreement added to the policy.
The court sustained this demurrer and dismissed the action, and the plaintiff excepted. The policy insured Mrs. Brooker against loss of a described automobile truck by fire, etc., and the loss-payable clause provided that the loss, if any, should be payable to the assured and S. O. Jenkins, as their "interest may appear." The assured sold this truck to Mrs. Lois Jacobs, subject to the interest therein of Jenkins, and surrendered to the purchaser the policy sued on. Notice of such sale and surrender of the policy was given to the defendant's agent, B. F. Grantham, the owner of the B. F. Grantham Insurance Agency of Glynn County, Georgia, and a request was made that the policy be changed so as to protect the interest of the purchaser and of Jenkins. This agent assured Jenkins, the person making such request, that the necessary change would be made, and that both his interest and that of the purchaser would be fully protected from that date. Thereafter the truck was destroyed by fire. It is contended by the defendant that the provisions of the policy were violated and the policy rendered void, before the destruction of the truck, when the assured sold the truck to Mrs. Jacobs, which transfer of title was not "provided by agreement in writing added" to the policy, as provided in the "title and ownership" clause of the policy. It is contended that the fact that Jenkins, on consummation of the sale to Mrs. Jacobs, notified the defendant by notifying B. F. Grantham, the owner of the Grantham Insurance Agency, the defendant's agent who wrote and delivered such policy, and requested such agent to change the policy so as to protect his interest and the interest of Mrs. Jacobs therein, and that such agent of the defendant, in its behalf, assured Jenkins that the change would be made and his interest and the interest of Mrs. Jacobs fully protected from that date, did not show a sufficient *Page 717 compliance with the provisions of the policy; that such change in title and ownership, in order to be valid and binding on the company, must be "provided by agreement in writing added" to the policy, which was not done; and that the statement and assurance given to Jenkins by its agent, Grantham Insurance Agency, that the policy would be changed so as to fully protect, from the date of the sale of the truck by the assured to Mrs. Jacobs, the interest of Mrs. Jacobs and that of Jenkins, was not binding on the company for the reason that the policy provided that "no officer, agent or other representative of this company shall have 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 be claimed by the assured unless so written or attached." In other words, it is contended that a change in title or ownership of the property insured voided the policy where it did not appear that the company had agreed thereto by a writing added to the policy; and that no agent or other representative of the company could waive the provisions of the policy as to a transfer of title and termination of interest of the assured rendering the policy void where such waiver was not written on "or attached" to the policy.
There can be no question but that the sale of the truck by the assured to Mrs. Jacobs was a violation of the "title and ownership" clause of the policy, and unless such sale and transfer were agreed to in writing by the insurer and this agreement added to the policy, or unless the company consented thereto and there has been a waiver of such written agreement to the sale of the property by an authorized agent of the insurer, or an estoppel in pais relatively thereto, the policy was rendered void by the sale of the truck, the assured thereby divesting herself of any insurable interest therein. Even were there no such provision in the policy sued on as the "title and ownership" clause quoted above, a transfer and sale of the truck whereby the assured had no further interest and title therein would void the policy. See 29 Am. Jur. 509; Code, § 56-812, *Page 718 56-825. The latter section declares: "An alienation of the property insured and a transfer of the policy, without the consent of the insurer, shall void the policy." As appears from the allegations of the petition Jenkins had a claim on and interest in the insured property as mortgagee or for an unpaid balance on the purchase-money. His claim or interest is recognized in the policy to the extent that the loss-payable clause provides that any loss would be payable to the assured and Jenkins, as their interest might appear. Jenkins, under the loss-payable clause, had no other or greater right than the assured, so that a breach of a condition or provision against alienation or change of title or interest by the assured would prevent a recovery by Jenkins. Southern States Fire c. Ins. Co. v. Napier, 22 Ga. App. 361 (96 S.E. 15); Hartford Fire Ins.Co. v. Liddell Co., 130 Ga. 8, 13 (60 S.E. 104, 14 L.R.A. (N.S.) 168, 124 Am. St. Rep. 157); 38 A.L.R. 368.
There was no written agreement by the insurer to the sale of the truck by Mrs. Brooker to Mrs. Jacobs added to the policy. By this sale the assured parted with her insurable interest in the property. Therefore, unless there was a written agreement by the insurer added to the policy, or unless this was waived by an authorized agent, or the insurer is equitably estopped from insisting on a forfeiture of the policy because of a violation of the title and ownership clause thereof, Jenkins could not recover on the policy as to whatever interest he had in the property. Therefore, with knowledge that the policy was void as to both the assured and Jenkins, and that the purchaser could not recover on the policy unless the company consented to such sale and transfer of title, and agreed in writing to the sale of the truck, Jenkins, acting for himself and for the purchaser, notified the insurer of the sale and requested that the policy be changed so as to protect both him and the purchaser. The defendant's agent assured Jenkins that this would be done and that his interest and the interest of the purchaser were from that date fully protected.
This case is controlled by the principles stated inCorporation of the Royal Exchange Assurance v. Franklin,158 Ga. 644 (124 S.E. 172, 38 A.L.R. 626). These principles are that there are two prerequisites in a case such as this to the arising of an estoppel against the company to deny that the insured does have the protection contended for. First, the company must have access to the *Page 719 policy; second, there must have been a reliance on the promise of the agent by those to whom the promise was made and for whose benefit it was made. It is alleged in this case that the policy was delivered to the purchaser. The petition is silent as to whether it was ever delivered to the insurance agent. The petition can not be construed to mean that the policy was delivered to the agent, as was the case in New York UnderwritersInsurance Co. v. Anderson, 52 Ga. App. 112 (182 S.E. 529). In that case it was alleged that the agent had procured the indorsement and transfer, and such allegation carried with it the necessary conclusion that the agent had the policy at the time. It is not alleged in this case that either the purchaser of the truck or the mortgagee relied on the agent's promise and acted thereon to the injury of either. The truck was sold before the alleged promise was made. In this respect this case is similar toSimonton v. Liverpool c. Insurance Co., 51 Ga. 76. So far as we can find there is no allegation in the petition as to reliance on the promise by any one which will satisfy the requirement of the law in respect thereto, inasmuch as the assured and the morgtagee herein must rely on the doctrine of estoppel to prevail.
The petition being deficient in the foregoing particulars it was not error to sustain the demurrer and dismiss the action.
Judgment affirmed. Sutton and Felton, JJ., concur.