Washington v. Interstate Fire Insurance , 163 Ga. App. 15 ( 1982 )

Deen, Presiding Judge,

dissenting.

Conceding that in Prudential Ins. Co. v. Perry, 121 Ga. App. 618 (174 SE2d 570) (1970), the writer dissenting, a partial “limitation of authority of the agent” existed on and upon the face of the application, this does not obtain in this case under consideration. Here no limitation of authority at all appears on the application, therefore, Perry, supra, is totally inapplicable. Without a limitation on the authority of the agent contained in and upon the face of the application knowledge of the agent is knowledge of the company. Allstate Ins. Co. v. Anderson, 121 Ga. App. 582 (174 SE2d 591) (1970); 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 latter cases are whole court expressions particularly as to this distinction here as compared to a Perry, supra, situation.

Construing appellant’s testimony most favorably the agent (company) had been to her house before, tried to sell her fire insurance on other occasions, the company (agent) saw the premium pay book for her other fire insurance policy hanging in plain view on the hook, and the company (agent) filled out the application for her and without any notice to her of any limited authority of agent she could have presumed he had the power to waive any requirement as to other fire insurance and just told her to sign up. The application and policy must be construed against the company drafting the contract. We cannot say that a jury could not find from the testimony and record that the company was not aware of the prior procured insurance and that in filling out the application by the company it either waived the answer to this condition, indifferently and in a cavalier manner chose “no” as an answer, or may have intentionally done so.

I would reverse and permit a jury to pass on this question of insurance.

I am authorized to state that Presiding Judge McMurray and Judge Banke join in this dissent.