Lead Opinion
Exceptions are taken to the sustaining of a motion to strike a petition which alleged that the defendant issued an insurance policy on the life of an 'insured. The premiums thereon were payable weekly and the receipt therefor was entered on the receipt hook belonging to the policy. Premiums were paid thereon up to November 29, 1937, when the agent was taken sick and failed to call for thе premiums, although this fact did not relieve the insured from the duty of making payments when due. The policy lapsed at the expiration of the grace period, December 27; 1937. On January 29, 1938, Morris, the defendant’s agent, who hаd been sick, and who was authorized to collect premiums and receipt therefor, came to the insured’s home and collected $5.35, representing approximately 12 weekly premiums, which was sufficient to pay up said policy for three weeks in advance of that date. At the same time said agent filled out an application for reinstatement and the insured signed the same. At the time the insured was ill, and the agent filling out the application knew of such fact. On February 7, 1938, another agent of the defendant, one Bolton, came to the insured’s home and claimed that the agent, Morris, had turned over to him only $4.35 instead of $5.40, and demanded of the insured $1.05 in addition, which amount was immediately paid. Bolton requested petitioner to deliver to him the policy and receipt book which he did. Bolton turned over this money to the Atlanta office оf the defendant, together with the application for reinstatement, *380 which application was never sent to the defendant’s home office in Jacksonville, Florida. On February 9, 1938, the insured died.
The petition alleged that such conduct on the part of the defendant waived the requirements of the policy providing for revival upon evidence of insurability. The policy provided: “Should this policy become void in consequence of nonpayment of premium, it may be revived upon payment of all premiums in arrears and the presentation of evidence of insurability satisfactory to the company.” It further provided: “No person except the president, secretary or assistant secretary, has power to modify, or, in the event of lapse, to reinstate this policy or to extend the time of .the payment of the рremium. No agent has power on behalf of the company to waive any forfeiture.” It was further alleged that the company retained the premiums paid until after the death of the insured, when it offered to return the premiums paid to the beneficiary who brings this action. It was alleged that such conduct waived the requirement as to proof of insurability and reinstated the policy.
“In the absence, however, of controlling statutory contract, or charter provision, or by-law, the general rule is that an insurer which receives, accepts, and retains past-due premiums, assessments, or dues, paid subsequent to the due date and the expiration of the days of grace, if any, renews the contract and waives the forfeiture for nonpayment, provided such acceptance is unconditional and the facts are known, since аn insurer which accepts past-due premiums or assessments, in violation of its own regulations, can not invoke the same in order to avoid liability.” 3 Couch Ins. Law, 2271, § 687. In
Piedmont & Arlington Life Insurance Co.
v.
Lester,
59
Ga.
812 (3) it was stated: “Although a life policy contained a prоvision that it was to be void on failure of insured to pay interest on premiums at the times when due, and that agents were not authorized 'to make, alter, or discharge contracts, or waive forfeitures,’ yet, if after an installment had become due, the agent had notice that insured was sick, and afterwards received the money and transmitted it to the company, which received it, the company thereby waived the forfeiture.”
Massachusetts Benefit Life
Association v.
Robinson,
104
Ga.
256 (3) (
We think the court erred in sustaining the motion to strike.
Judgment reversed.
Dissenting Opinion
dissenting. The petition showed that the policy of life insurance sued upon lapsed on December 27, 1937, for nonpayment of premiums due; that on January 29, 1938, one Morris, an agent of the defendant, collected from petitioner, the beneficiary named in the policy, the sum of $5.35, which more than paid up the unpaid рremiums; that, at the same time, Morris filled out an application for a reinstatement of the policy which was signed by the insured; that the insured was then ill and Morris knew of this fact; that the application for reinstatement was never forwarded to the defendant’s home office at Jacksonville, but was retained in its Atlanta office, with the notation thereon, “hold;” that Morris turned over the said sum of $5.35 and the application for reinstatement to one Bolton, another agent of the defendant at its Atlanta office; that because of the above-stated facts, the defendant waived the requirements of the policy providing that before a void policy can be revived evidence of insurability satisfactory to the company must be presented. On an oral motion, the petition was dismissed, *382 and that judgment was assigned as error. The policy сontained the following provision: “If for any reason the agent shall not call for the premiums when due, it shall be the duty of the policyholder to bring or send said premiums to the home office or to the compаny’s authorized agent; and in the event of failure to perform this duty within four weeks from the date upon which said premium was due, this policy shall thereupon become void and all premiums paid hereon shall be forfеited to the company, except as herein provided.” The policy contained the further provisions: “4. Revival. Should this policy become void in consequence of nonpayment of premium, it may bе revived upon payment of all premiums in arrears and the presentation of evidence of insurability satisfactory to the company.” (Italics mine.) “5. Alterations of contract. No person except the president, secretary, or assistant secretary has the power to modify, or, in the event of lapse, to reinstate this policy, or to extend the time of payment of a premium. No agent has power on behalf of the company to waive any forfeiture, or to bind the company by making any promise, or by making or receiving any representations or information.”
The instant petition showed on its facе that the policy of insurance sued on had lapsed because of the nonpayment of premiums, and that, while such premiums were subsequently paid, no evidence of insurability had been presented to the insurance company. Nor did the petition show a waiver by the company of the above-stated provisions of the policy. In
Harrod
v.
Sun Life Assurance
Co., 49
Ga. App.
433, 435 (
In my opinion, the case just cited is controlling in the instant case; and the petition was properly dismissed on oral motion. If there is any conflict between the ruling in the
ISidson
case, supra, and the decision of the Supreme Court of Alabama in Life & Casualty Co.
v.
Street,