This is an appeal by an insurer from the overruling of its motion for summary judgment in an action brought by the plaintiff against the defendant insurer upon an insurance policy insuring a house and contents, which policy was apparently automatically renewed after a divorce between the plaintiff and her former husband and in the name of the former husband, and after the conveyance of the property to the plaintiff who, as spouse, was an insured under the policy prior to the divorce, the action being for a loss occurring after renewal of the policy.
1. So far as the evidence discloses, there was an unqualified refusal to pay by the insurer defendant of the claim of loss by fire of the plaintiff. This constituted an estoppel from insisting upon compliance with either written notice of loss or formal proof of loss as required by the policy. Hanover Fire Ins. Co. v. Scroggs, 90 Ga. App. 539
, 547 (83 SE2d 295
); New York Underwriters Ins. Co. v. Noles, 101 Ga. App. 922
, 925 (115 SE2d 474
). See also Corporation of the Royal Exchange &c. v. Franklin, 158 Ga. 644
, 649 (124 SE 172
, 38 ALR 626) in connection with the facts stated in Division 3 (a) of this opinion as also constituting an estoppel.
2. Assuming, without deciding, that the conveyance by the husband to the wife upon their divorce in settlement of alimony may have voided the policy upon consideration of and application of general law on the subject (former Code 56-825 so providing, having been repealed by the Georgia Insurance Code, Ga. L. 1960, pp. 289, 755; and there being no such provision in the policy), the act of the insurer, 26 days after the fire, of endorsing the policy to show the assignment of the policy to the plaintiff to whom the property insured had been conveyed, as well as the consent of the insurer there to, thus treating the insurance policy as a subsisting contract, constitutes a waiver of the claim that the policy is void because of such conveyance. Whether or not such action alone would constitute a waiver of the claim that the former husband had no insurable interest in the property at the time of the loss, it is not necessary to decide on the present appeal.
3. At this point, there are two theories upon which plaintiff may recover.
As was stated recently by the Supreme Court in Waldrep v. Goodwin, 230 Ga. 1 (1) (195 SE2d 432)
, "The elemental principle should be noted at the outset that once a party in Use position of a defendant who is a movant for summary judgment pierces the pleadings of one in the position of a plaintiff and shows to the court that one essential element under any theory of recovery is lacking and incapable of proof the defendant is entitled to summary judgment as a matter of law irrespective of any issues of fact with regard to other essential elements." The evidence adduced absolutely fails to show that the fact the agent of the insurer had such knowledge at the time he made the promises was incapable of proof. Therefore, as to this essential element under this theory of recovery the movant failed to carry the burden placed upon it. In other words, an issue remains as to whether the agent did or did not have such knowledge at the time, and the evidence does not demand a finding he did not.
(b) The evidence discloses there was a mortgage or security deed on at least some of the property insured, and if the husband, at the time of the loss, was obligated to pay the debt thus secured, he had an insurable interest in such property and would be entitled to a right of action on the policy to recover the loss. Code 56-2404; Pike v. American Alliance Ins. Co., 160 Ga. 755 (129 SE 53)
; Employers' Fire Ins. Co. v. Pennsylvania Millers Mutual Ins. Co., 116 Ga. App. 433
, 435 (157 SE2d 807
). The endorsement on the policy shows that any right of action on the policy had by the husband for the loss occurring of the property given as security for the debt was transferred to the plaintiff. Georgia Co-Operative Fire Assn. v. Borchardt & Co., 123 Ga. 181
(1, 2) (51 SE 429
, 3 AC 472). On this theory of plaintiff's recovery, as shown by the pleadings and evidence, there was an issue remaining unresolved by the evidence. That is, was the husband obligated or not obligated to pay the debt referred to above? Here again, the defendant insurer has failed to show the plaintiff's case incapable of proof on this theory, or presented proof demanding a finding in its favor.
4. As the evidence submitted on the insurer's motion for summary judgment failed to affirmatively disprove the plaintiff's right of recovery under the policy sued upon based on waiver and estoppel, the trial judge did not err in overruling the motion.
Jones, Cork, Miller & Benton, Carr G. Dodson, Rufus D. Sams, III, for appellant.