59 Ga. App. 289 | Ga. Ct. App. | 1938
Lead Opinion
Under the general grounds plaintiff in error raises the question as to whether there was an absolute refusal to pay or a denial of liability by one who was, at the time of the refusal or denial, in such a position that his statements would bind the company; in other words, one who was the authorized agent of the company. It is true that if by the terms of the policy, as therein provided, “no agent has the power, on behalf of the company, to waive any forfeiture or to bind the company by making any promises, or making or receiving any representations or information,” the notice by an agent, who represents the company in receiving applications for insurance, in collecting premiums, and in issuing policies, of a refusal to pay the loss would not bind the company as a waiver on its behalf of the contractual duty to furnish the proofs of loss called for by the terms of the,contract of insurance. However, if an absolute refusal to pay is made by an adjuster or an agent who has authority to represent the company in determining whether or not the policy should be paid, the rule would be otherwise. Williams v. Atlas Assurance Co., 22 Ga. App. 661 (97 S. E. 91). See also Continental Insurance Co. v. Wickham, 110 Ga. 129, 135 (35 S. E. 287). In the instant case, James E. Garst, attorney representing the plaintiff, testified that he went to the office of the company and told “them what I came for and I
It is further contended in the general grounds that none of the terms of the policy could be waived except by the president and the secretary of the companj^, and that the evidence on behalf of the plaintiff showed that mere insurance agents were the only parties with whom she communicated, that if waiver was made it was by these agents, and that therefore the plaintiff did not carry the burden of showing that the parties who were authorized in the policy to waive its provisions did actually waive the one calling for proof of loss, nor did she show that the company, by its conduct, had waived the provision, or had authorized the alleged agents to waive it. Citing Bailey v. First National Fire Ins. Co., 18 Ga. App. 213 (89 S. E. 80), and National Fire Ins. Co. v. Thompson, 51 Ga. App. 625 (181 S. E. 101).
A clause in a policy of insurance prohibiting waiver by any agent, and prohibiting certain named acts except by the president or the secretary, is to be construed as referring to those provisions which may be properly designated as conditions; and has no reference to those stipulations which are to be performed after the loss has accrued, such as furnishing proof of loss. These may be expressly
Special ground 1 complains of the court’s charge to the jury that “One piwision in this policy is this: No obligation is assumed by the company unless on said date,’ meaning June 415, 1936, The insured is alive and in sound health,’ ” and contends that the court should have charged the entire clause which is that “no obligation is assumed by the company for any disease contracted prior to the date hereof, nor unless on said date insured is alive and in sound health.” Construing the terms of the policy most strongly against the insurer, Ave interpret the clause “any disease contracted prior to the date hereof, nor unless on said date insured is alive and in sound health,” to mean any disease which had been contracted and which had manifested itself on or before the date of the issuance of the policy. In construing contracts of insurance like that now before us if Ave should say that there could be no recovery by the insured if a disease was merely contracted on or before the date of the policy, there Avould be scarcely any limit to its nullifying influence. The word “disease,” as used in policies
Special ground 1 further complains of the instruction to the jury as to the meaning of “sound health” which was as follows: “Therefore it becomes important for you to know what in law is meant by ‘sound health’ as applied to this case. I charge you that the term ‘sound health’ used in a policy and as applicable in this case, means the applicant, that is the insured, has no grave impairment or serious disease, and he is free from any ailment that seriously affects the general soundness and healthfulness of the system. Under this definition, sound health consists not alone in the outward appearance of sound health, but also a reasonable free-' dom from physical derangement and impairment as above defined.” The definition of “sound health” as here given was both essential and correct, for it is in the language of this court and the Supreme Court, and has been quoted in numerous eases as being a proper definition of “sound health.” See National Life & Accident Ins. Co. v. Smith, supra; Atlantic Birmingham R. Co. v. Douglas, 119 Ga. 658 (2) (46 S. E. 867); National Life & Accident Ins. Co. v. Martin, supra. There is no merit in this ground.
Special ground 2 complains of the admission of the testimony of James E. Garst that “I went to the office of the defendant to see about collecting this insurance and talked to Mr. Wood-all, the same man that appears here as representing the company. He refused to pay me all of it; he says sufficient proofs of loss had been furnished, that was not the cause of nonpayment. This paper was in possession of Woodall who give me his reasons for not paying. I don’t think I knew Wardlaw [Woodall?] before I went up there, but I knew of him. I went to the office of the company and told them what I came for, and I was referred to Woodall and I made an engagement with him and filled the engagement,” and further contends that the court erred in overruling the following
Another special ground complains that the court erred in refusing to give the following charge to the jury: “I charge you under the evidence the presumption is that insured’s death was caused by advanced pellagra.” Merely because a fact may be established by the evidence, to wit, that the death of the insured resulted from advanced pellagra, no presumption to that effect was created, and the trial judge did not err in refusing to so charge. This ground is likewise not meritorious.
The court did not err in affirming the judgment overruling the motion for new trial.
Judgment affirmed.
Rehearing
ON MOTION FOR REHEARING.
On motion for rehearing, part 1 of the original opinion has been amended as it appears in the above form.
Rehearing denied.