Providence Washington Insurance v. Pass , 64 Ga. App. 221 ( 1940 )

I can not agree with the majority opinion. Generally speaking, an executory contract of sale entered into by the insured, not consummated before loss, is not a breach of the condition that the interest of the insured shall remain sole and unconditional. 26 C. J. 233. "But where the executory vendee has deviated from the usual practice and has, in addition to his executory contract, and pending its fulfillment, taken actual possession and control of the property, by the better authority the policy is held avoided." Richards on the Law of Insurance, 385, § 245; Brighton Beach Racing Asso. v. Home Insurance Co., 47 Misc. 177 (93 N. Y. Supp. 654); Tucker v. Royal Insurance Co., 220 Ala. 103 (124 So. 215); Cardwell v. Virginia State Insurance 198 Ala. 211 (73 So. 466). The effect of the insured in allowing the Nalley company to take possession of the property for demonstration purposes and in agreeing to take a credit of $500 therefor on the purchase of a new automobile, was, so far as the policy in question is concerned, to retain legal title in himself, and the Nalley company to acquire an equitable interest in the insured property. The provision here with reference to the change of interest refers to some change of interest which would make the loss fall upon some person other than the insured (Libby Lumber Co. v. Pacific States Fire Insurance Co.,79 Mont. 166, 255 P. 340, 60 A.L.R. 1); and one "who has contracted to sell real estate to another who can enforce specific performance is not the unconditional and sole owner of the property, although the record title is still in his name. . . The interest of a purchaser under an executory contract of sale is the sole and unconditional ownership, within the true meaning of the ordinary clause on that subject in insurance policies, because the vendor may compel the vendee to pay for the property and to suffer any loss that occurs." (Italics mine.) 14 Rawle C. L. 1058, § 234. Generally, in Georgia, where title is reserved in the vendor until certain conditions are complied with, the loss or destruction of the subject-matter of the sale falls on the vendor wherethe vendee is without fault. Code, § 96-108. But it must affirmatively appear that the property was destroyed through no fault of the vendee.Wells v. Fay Egan Co., 143 Ga. 732 (85 S.E. 873). The complete reply to the contention by the plaintiff that "the law requires the holder of the title to bear the loss," is this: The evidence does not show that the insured property was wrecked without the vendee's fault. All that the evidence discloses concerning the wreck is the bare fact that Mr. Bowen was working for the vendee, the Nalley company, and was going to Atlanta in the automobile in question on a "personal trip," and "collided with a truck loaded with mules." This was not sufficient. It must affirmatively appear that the property was damaged without the vendee's fault. Wells v. Fay Egan Co., supra. The loss here falls on the vendee, and therefore I think that there was such a change in the "interest" of the plaintiff in the insured property as voided the policy. See Watts v. Phenix Insurance Co., 134 Ga. 717 (68 S.E. 479); Continental Insurance Co. v. Michaels (Tex.Civ.App.), 13 S.W.2d, 465. In my opinion the court erred in denying a new trial.