Insurance Co. of North America v. DeLoach & Co. , 3 Ga. App. 807 ( 1908 )

Russell, J.

Suit was brought upon an insurance policy in the sum of $1,300, written by the defendant company on the plaintiffs’ stock of goods. The policy contained the usual clause making it void in the event that additional insurance, whether already existing or thereafter to be procured,'should be taken without the written consent of the company. Upon the policy is indorsed the following entry: “$500 additional concurrent insurance permitted.” At the date that this policy was issued, the insured had in force-two policies of the iEtna Insurance Company, amounting to $3,000, on the same stock of goods. The proof discloses that the agent of the defendant company, at the time he issued the policy sued on, knew that the iEtna Company had in force insurance on the same stock of goods, but whether he knew the amount of it does not appear. The plaintiffs secured a verdict; and the insurance company excepts.

1. The specific point made by the insurance company is, that admitting that ordinarily the issuance of a policy of insurance, with knowledge that there is other insurance upon the same property, is a waiver of the stipulations in the policy against other insurance, still, to have this result, the agent of the insurance company must not only have knowledge that there is other insurance, but must also know 'the extent of the same; and that in any event, the amount of the outstanding insurance being unknown, the fact that in the present case the agent of the company put upon the policy a written provision that the additional concurrent insurance should not exceed $500 should be held to be a limitation upon the extent of the waiver. The proposition that if the agent of the insurance company issued this policy with knowledge that there was $2,000 of concurrent insurance outstanding in the iEtna Company on the same property there would be a1 waiver as to such policy, and that the insurance company could not claim an avoid- • anee on account of it, is well settled. Johnson v. Ætna Ins. Co., 123 Ga. 204. We do not think it material whether the amount of this outstanding insurance was actually known or not, in the absence of some suppression of truth by the insured as to it; for the knowledge which will effectuate a waiver includes not only that which is actually known, but also that which might have been ascertained by reasonable inquiry. The knowledge of the amount of the policy may be either actual or constructive. “Notice which is sufficient to excite attention and put a party on his guard, and call for inquiry, is notice of everything to which such inquiry might have led.” And this is applicable to the circumstances under which a waiver of the conditions of an insurance policy may arise. May on Ins. §501; Grandy v. Orient Ins. Co., 52 S. C. 224; Phœnix Ins. Co. v. Raddin, 120 U. S. 183; Reynolds v. Conn. Fire Ins. Co., 47 N. Y. 559; Lebanon Mut. Ins. Co. v. Kepler, 106 Pa. St. 28.

2. If we should concede that the words indorsed on the policy, '“$500 additional concurrent insurance permitted,” were suscepti-’ ble of two constructions, — the one, that the agent, not knowing the amount of the outstanding insurance, was attempting to guard against an excessive amount, so that the amount given should relate to that already in force; and the other, that it related to the insurance to be taken in addition to that outstanding at the time the policy was written, including that then being written, — the court would be compelled to adopt the latter construction; for the provisions of a policy are to be more strongly construed against the insurer. Mo. St. Life Ins. Co. v. Lovelace, 1 Ga. App. 447 (4). Of course the intention of the parties is to be first considered, and even in a case of doubt the court is to go no further than a fair construction of the language used will permit. North British &c. Ins. Co. v. Tye, 1 Ga. App. 389. But there is much in the parol testimony which indicates that by the use of the word “additional”1 it was the intention of the parties to waive objection to any policies which had previously been written.

We therefore conclude that the insurance company was estopped from complaining of the existence of the outstanding insurance, by reason of the fact that it had waived any right to avoid the policy on account of the additional insurance, by accepting the premium, with notice, actual or constructive, of its existence. As the Supreme Court of the United States says in the Baddin case, supra, upon a similar question: “To hold otherwise would be to maintain that the contract of insurance requires good faith of the assured only, and not of the insurers, and to permit insurers, knowing all the facts, to continue to receive new benefits from the contract while they decline to bear its burdens.”

Judgment affirmed.