27 Ga. App. 435 | Ga. Ct. App. | 1921
Mrs. Annie Folds, as administratrix, sued the New York Life Insurance Company on an insurance policy upon the life of her deceased husband. The application for insurance, which was made a part of the policy, provided: “ that the insurance hereby applied for shall not take effect unless the first premium is paid and the policy is delivered to and received by me during my lifetime and good health ” and “ that only the President, a Vice-President, a Second Vice-President, a Secretary or the Treasurer of the Company can make, modify or discharge contracts, or waive any of the Company’s rights or reouirements, and that none of these acts can be done by the agent taking this application.” The policy contained also the following provisions: “ The policy and the application therefor, copy of which is attached hereto, constitute the entire contract. . . No agent is authorized to waive forfeitures or to make, modify or discharge contracts, or to extend the time for paying a premium.” From the plaintiff’s evidence it appears that the policy-
On the trial the policy was produced by the company under a notice given to it by the plaintiff. Other than the recital in the policy there was no evidence that the first premium had ever been paid. The plaintiff offered in evidence a letter from the agent Smith to the defendant, addressed to its office in Atlanta, and dated February 4, 1919, stating that, on account of his having been appointed temporary administrator of Folds’ estate, his (Smith’s) attorney would not consent to his return of the policy sued on. The letter was offered for the purpose of showing that Smith had received and delivered the policy to the applicant. This letter, on objection, was excluded by the court. The court excluded also certain testimony of J. O. Stanton, a witness for plaintiff, as follows: “ I asked him whether the policy had come, and he said he had it, — the policy on Will Folds’ life, he told me it had come. He didn’t say how much. He said he had it and hadn’t delivered it. He said Mr. Folds had a box at the bank. Fie didn’t state anything else. He said he had the policy, and Mr. Folds had a box in his bank. I had not seen Mr. Folds — I just heard he was sick. The following testimony of the plaintiff was also excluded: “ Mr. Smith said he wanted to see me about being administrator. I told him I would like to get him to help me for a while — -I wasn’t able to see after anything myself. Nothing was said about its being necessary to look after the matter promptly and right away. He said he had been told by several to get the place as temporary administrator if he could. He came to see me again. I asked him to carry these papers back and put them in the bank. He said this policy had been there several days. He did not say whether W. J. Folds had ever seen it. He said W. J. Folds told him just to keep this policy up there with his other papers as he had always done. Mr. Smith said when he received it he put it with his other papers in the bank. When he came to my house he had it all together in one bundle.” At the conclusion of the evidence introduced by the plaintiff the court granted a motion for nonsuit.
Judgment affirmed.