76 Ga. 575 | Ga. | 1886
Grant, for the use of Sheldon, brought suit against the Alabama Gold Life Insurance Company for the recovery of two policies of insurance, one on the life of Grant, for refusal to give a paid-up policy thereon, and the other for refusing to pay loss, on the death of Taylor, for insurance on his life by Grant. The jury found for defendant, a new trial was denied, and the case is here for review.
We fail to see the error. It was a notice under the statute; the defendant responded by a transcript under the statute; and literally it is enough. Certainly it would be very harsh to render judgment against a party for following the statute, in answer to a statutory notice to produce books. The plaintiff was not without remedy prescribed by statute in the next section of the Code (section 3518), which provides for a commission to examine the books and make a full transcript. True that, too, refers only to dealings in the books between plaintiff and defendant; but the court, if it saw other transcripts were material, might well invoke the spirit of the statute, and would doubtless have done so, and directed the commission to transcribe everything relevant to the case. Thus nobody would be hurt, and complete justice be done.
We do not think he was so entitled. If his policy had been transferred to a third person, the premiums must be continuously paid, to prevent lapse and ferfeiture. If transferred for collateral security to a third person, the same thing must be done; why not, if transferred as collateral, to the defendant company itself? If the company discharged its full duty in respect to the policy, notice pursuant to usage, and everything else necessary to bind the plaintiff, why should not the plaintiff keep alive this collateral with the company to secure them as well as others ?
If there be any black letter law of technical pleading and its result technically, which would authorize such a consequence, it is time to stop it. We are not aware of any such.
(a.) In respect to notice, as to all other dealings between parties, custom and usuage followed for sometime in the intercourse between them, if suddenly changed, is well calculated to operate as a fraud upon those confiding in it, by inducing them not to hold in memory the exact day a thing should be done, because of the habit of the intercourse between parties for notice to be given of that day.
(5.) The rule should be rigidly applied where the result of not coming up to the exact date works a forfeiture of all past payments as well as of the entire contract.
(c.) In this state, where life insurance companies deal with the assured for time sufficient to make it their usage and custom to give notice to the assured of the date when premiums fall due, and fail to give notice thereof, the policy will not be forfeited, if, within a period so reasonably short as to show an intent to continue his policy, the assured take steps to inquire and pay the premium. Code, §§1, sub-sec. 4, 2070, 2648, 3805; 62 Ga., 247; Ala. Gold Ins. Co. vs. Garmany, 74 Ga., 51.
In Ins. Co. vs. Eggleston, 96 U. S. R., 572, the United States Supreme Court put itself on the same general line, though afterwards, in Thompson vs. Ins. Co., in 104 U. S.
Be that, however, as it may, we adhere to the spirit of the Georgia Oode, and what we consider the reason and spirit of a great principle; and so lay down the law in this state as indicated heretofore in the cases cited.
This judgment is affirmed because the plaintiff slept too long.
Judgment affirmed.