52 Ga. App. 171 | Ga. Ct. App. | 1935
Lead Opinion
Juanita Wilson filed suit on an insurance policy issued on the life of her husband, Archie Wilson, on September 11, 1933. Archie Wilson died on April 21, 1931. The policy was not attached to. the petition, it being alleged that the policy had been taken by the defendant company, which refused to deliver it to the plaintiff. The defendant filed an affirmative defense, alleging that on February 13, 1933, it issued a policy of insurance on the life of Archie Wilson, in which policy Mary Wilson, a sister of the deceased, was named as beneficiary; that the defendant had paid Mary Wilson the full amount due thereon by reason of the death of Archie Wilson; that on September 11, 1933, it issued to Archie Wilson the policy sued on; that in his application for this policy he failed to refer to the policy naming Mary Wilson as beneficiary, or in any way to identify himself as the same person who was insured in said former policy; and that the policy sued on contained the following provision: “The liability of the company shall be limited to the amount of the premium paid hereon, if any other policy on said life shall have previously been issued by this company and shall be in force at the date hereof, unless this and the previous policy contain endorsement signed by the president, vice-president, or secretary, permitting such policy to be in full force at the date hereof. The company shall not be presumed to know of the existence of any previous policy, and the issuance of this policy shall not be deemed a waiver of this condition.” Neither of the policies contained an endorsement permitting the insured to hold both at the same time. It was admitted in the plea that the premiums due on the policy sued on had been paid up to the time of the death of Archie Wilson. By amendment the defendant alleged that the policy contained also the following provisions: “Agents (which term includes managers and assistant managers) are not authorized and have no power to make, alter, or discharge contracts, waive forfeitures, or to receive premiums on policies which have been terminated four weeks or more. . . The acceptance of this contract of insurance is a guarantee that it has been ap
1. The plaintiff in error contends that there were two policies on the life of the same person, unknown to the executive officers of the defendant until proofs of death came in; and therefore that liability was limited to a return of the premiums paid. The cases of Harris v. Bankers Health & Life Ins. Co., 40 Ga. App. 678 (150 S. E. 856), and National Life & Accident Insurance Co. v. Weaver, 38 Ga. App. 590 (144 S. E. 682), are relied on in support of this contention: In the Harris case, it was said: “This was a suit by the beneficiary against the insurer, to recover on a life-insurance policy. The policy contained the following provisions: ‘This policy shall be void if there shall be in force on the life of the insured a policy previously issued by the company, unless the first issued policy contains an endorsement signed by an officer of the company authorizing this policy to be in force at the same time. . . No person except the president or secretary has the power to modify or in the event of lapse to reinstate this policy or to extend the time of payment of the premi
In each of the cases just cited,. the record shows that in the application for the second policy, in answer to the question, “Are you insured in this company?” the applicant answered “No.” There was in each instance another policy on the life of the insured in the same company, payable to a different beneficiary. We can readily see that where the applicant himself answered that he had no insurance in such company, the officers of the company could say that they had no knowledge that the
It is not conceivable, however, that a company issuing a policy on the life of B may say, although all written statements made in the applications are true, and although such written applications would be sufficient to put it on notice, and did at the time they were issued by its executive officers put it on notice as to the identity of the applicant, that it had no actual notice that it was issuing two policies on the life of B. In Home Friendly Society v. Berry, 94 Ga. 606 (21 S. E. 583), it was held that notice to the agent receiving the application was not notice to the agent issuing the policies. Berry in making his applications represented that “he had no other insurance or life membership in the defendant company.” In the present case it will be presumed, construing the affirmative answer most strongly against the pleader, that if such question was asked the applicant, he answered correctly that he did have other insurance in the same company. No copies of the applications were attached to the answer, although called for by special demurrer, which demurrer does not seem to have been passed on. In Life Insurance Company of Virginia v. Fitzgerald, 143 Ga. 725 (85 S. E. 913), the insured made an answer that no other policy had been issued on his life, when as a matter of fact another policy in another company had been issued to him. The court held that a condition “that this policy shall be void if the insured is now or shall hereafter become insured in this or any other company or society and the total amount of insurance shall exceed” a named amount, avoided the entire policy if such a condition was violated. Following the decision in New York Life Insurance Co. v. Patten, 151 Ga. 185
It is true that notice to an agent or officer of an insurance company that amounts to a waiver or estoppel must be actual notice, and not constructive notice. Orient Ins. Co. v. Williamson, 98 Ga. 464, 467 (25 S. E. 560). We recognize, as was said in Wiley v. Bome Ins. Co., 12 Ga. App. 186 (76 S. E. 1067), that “Constructive notice does not possess in its own essential nature the character assigned to it by law. From the exigent presumptive in
2. A demurrer was also sustained as to the further defense, that as soon as the defendant discovered, on April 24, on the filing of proofs of loss under both policies, that it insured the same person, it promptly thereafter paid in full the older claim, and issued its cheek to Juanita Wilson, the wife, in the sum of $8, the amount of the premiums which had been paid on the policy sued on, and that on May 5, 1934, the check was delivered to Juanita Wilson, and she then and there executed her receipt for the same as follows: “$8.00. Received of the Interstate Life & Accident Company of Chattanooga, Tenn., eight and no/100 dollars, which payment is in full of any and all claims against said company upon policy No. A-2, 10?, 037 issued upon the life of Archie Wilson. Dated May 5, 1934. Juanita Wilson [Seal], No. 124 Stevens St., Thomasville, Georgia. Witness, O. J. McGahee.” Thereafter suit on this policy was filed, and three days later the check was returned to the defendant with letter advising it that suit had been filed, and expressly waiving any question as to the check being legal tender. We think the court erred in striking this plea. In Burgamy v. Holton, 165 Ga. 384 (3) (141 S. E. 42), it was said: “An accord and satisfaction arises where parties by a subsequent agreement have satisfied
Judgment reversed.
Concurrence Opinion
concurring specially. I concur in the ruling made in headnote 2; but in my opinion the court erred also in sustaining that part of the demurrer to the defendant’s answer which set up an avoidance of liability because of the existence of another policy of insurance issued by the company to the same person, Archie Wilson, without an indorsement thereon, signed by the president, vice-president, or secretary of the company, allowing the additional insurance. I do not think the facts set forth in the answer showed that the company had actual notice that the Archie Wilson insured in the second policy was- the same person insured in- the first policy. In my opinion this case is controlled by the decisions of this court in National Life Ins. Co. v. Weaver, 38 Ga. App. 590 (supra), and Harris v. Bankers Life Ins. Co., 40 Ga. App. 678 (supra). I can not see any material difference between the facts of those cases and the facts of the instant case.