*1 Walker, 532, 536 Ellis 212); 174 Ga. v. Millen Hotel (163 E. 2d, S. 565). By reading these eases it will be observed that their facts were different from those here involved. no between present We find conflict holding rulings the cases cited by plaintiff. err in
The court did sustaining general demurrers. J., J., Judgment Broyles, G. and MacIntyre, concur. affirmed. AND 29538. LIFE CASUALTY INSURANCE COMPANY OF
TENNESSEE v. BROCKETT. Rehearing July 17, 27, 1942. Decided June 1942. denied *3 Bell, H. error. G. plaintiff Cusler, Vance contra. A. B. Conger, J. (After stating foregoing facts.) Gardner, raised The demurrers issues as those same practically trial, the motion grounds raised for new general that the evidence the allega difference introduced sustain being was more in detail than petition tions of the were the allegations case, our themselves. Under view of the hereinafter more dis fully cussed, the -not err in judge did the demurrers. overruling Grounds inclusive and of the amended mo
(a) tion errors on the admission of assign policy, receipt 29, 19-10, March parol connection with testimony said docu grounds on the such ments, that was immaterial its testimony admission The ultimate prejudicial. effect of the errors as is that the court erred in signed admitting to sustain the testimony Since we have allegations petition. held that the demurrers general grounds same go whether the question, plain tiff was entitled to recover as a matter law, under the allegations petition and the evidence thereunder, introduced these tbe grounds of the motion amended bemay dealt with under properly the last division of this opinion. (5) Ground 11 complains gen could not erally plaintiff recover because the witness Meeks testified that the a claim company paid on another contract which Brockett with had and cites a company, provision of the con tract if had previously another “industrial travel and pedestrian policy” concurrently force on, $1000, with the sued excess of the policy sued on would *4 be void. Such defense was not in' set the up answer. The first' mention of it was in sort in vague a of the way above evidence quoted, and the next mention it in of ground was 11 of the amended motion for new trial. It nowhere appears the record the that other policy thus incidentally and vaguely to referred was another “industrial travel and pedestrian policy” which made the amount of type $1000 this of insurance exceed in favor of the is sued the defendant. ground This is without merit. (c) Grounds and 14 error the assign because court failed to charge the involved. There were no more issues written fully regarding The as a whole was not to subject to the requests charge. charge errors assigned. will as to general grounds,
We now discuss the whether Meeks was to bind from time authorized the the the first company was made the until payment “binding receipt” and therefor on will the the It company passed application. be noted from the Meeks, evidence the of agent that the company, testified that he “was after a under the that had impression been the copy okayed by home that was in office it force from the date of the payment, the first issuance of the payment, and the receipt.” kept must be that mind which application the plaintiff executed placed no limitation on of The authority agent. application does contain of memoranda the nature and of amount the policy of in for surance which the application was made. If the application had was not stipulated to become effective it until was issued and delivered at a time when the insured was in good health, the case would be different. Counsel for plaintiff error cites Newton v. Insurance 55 Ga. App. Gulf S. E. 69), as authority his contention that the policy did not cover an injury sustained between the date of the application of first payment premium and the date of the delivery of the A policy. reading of this case will reveal that the limitation stated application, as well inas the policy: “Where a person makes application a to foreign accident insur ance through the latter’s and agent, the context of the application certain, shows a specific, and definite of in for, surance is applied applicant is presumed to be ac fully with all quainted the terms and conditions of the policy applied for, where the policy provided tliat Tt is especially agreed that secretary, or president, actuary shall have power to alter or of terms this contract change or waive forfeitures, and that it shall not be within scope authority any agent, man superintendent, or other than ager, the said president, secretary, or to or alter actuary, terms of change this contract or to thereof,’ waive the terms any applicant is notice, in the proof absence contrary, that the soliciting agent is without a or accept payment authority payments on premiums on the with the agree applicant that the in effect *5 842 a contradiction to the in applicant, provision
before its
to
delivery
will take effect on
in
that the ‘policy
the application,
delivery
ours.) Counsel
Rome Industrial
cites
(Italics
the applicant.’”
Eidson,
that
Ga. 592
S. E.
(75
657), holding
Insurance
138
Co. v.
the
been
could not exceed
agent
a
had
accepted
after
In
In Cotton
therein.
States
expressed
limit
authority
of
Life
48,
authority
50
which counsel cites as
Scurry,
surance Co. v.
Ga.
is
receipt]
“Whether it
binding
it was held:
position,
for his
[a
until action is
on
by
had
company
company
binding
this
arise
the facts of
that does
under
question
is a
not
application,
(b),
Insurance
v.
148
843
Hightower,
Co.
Ga.
case.” Reliance Life
for
application
follows:
“Where the
holds as
by plaintiff,
cited
itself
stipulate
life
a
of
insurance
until
shall
the first premium
not become effective
insurance shall
health, and
is
applicant
good
while
actually paid
have been
time
or extend
modify
not authorized
are
agents
the first premium
a
the actual
of
payment
for
premium,
paying
is a condition precedent
health of the
good
applicant
during
insurer;
local
of the company
and a
of
liability
such condition.”
could not waive
Co.,
Ga.
Insurance
122
cited,
v. Prudential
Other eases
Hutson
Co., 110 Ga.
v. Phœnix Insurance
1000), Haupt
S. E.
(50
847
Palmer,
v.
50
App.
Co.
Ga.
E.
&c. Insurance
342),
146
S.
(35
Hart,
v.
187
W.
Sovereign
W. O.
763),
Camp
506
S. E.
(178
for the
are to
the agent
E.
the effect that
296),
304
S.
(200
Ga.
for
terms
specific
application
not waive
can
instant
after
We think the
delivery.
or of the policy
insurance
will
authorities to which we
now refer.
case is controlled
Co.,
Queen
held, in
Insurance Co. v. Hartwell Ice &c.
court
This
310),
binding
appli-
that a
issued the
slip
App.
(68
is a mere written memorandum of the most
insurance
for
cant
insurance,
contract of
terms of the
intended
preliminary
important
risk.
temporary protection pending investigation
to give
at
receipt
said that the
the case
may
binding
it
be
While
memoranda
the most
terms
important
does
contain
bar
connection with the
it
taken
application
when
the polic3r,
so.
it does do
which was signed
v. North
Ins.
the effect that
of sickness
insurance against
contingency
the applicant
*6
if
of the
the
policy,
applica
its date and the delivery
intervening
find the
dis
principle
We
same'
accepted.
tion for insurance is
N.
Co.,
Ins.
168
in Lea v. Atlantic
cussed at length approvingly
Association
in Hallauer v. Fire
478
S. E.
and also
(84
813),
C.
E.
(98
of
In
what has been
it must be
in mind
kept
addition to
that it is the law and the
of this State as to limitations of
policy
an insurance
are contained in
agent
which
the
authority
policy,
and where such limitations are contained
in the
only
policy,
the limitations refer to matters which occur
subsequently
&
issuance and
of the
See Mechanics
Traders
policy.
delivery
Asso.,
262,
Insurance Co. v. Mutual &c.
98 Ga.
266
S. E.
(25
457),
Co.,
and Johnson v.
404
Ætna Insurance
123 Ga.
the
(infra), citing
case,
&
Mechanics
Traders Co.
It was also held in Inter
supra.
Bess,
&
state
:
Accident Co. v.
35
723
S. E. 804)
Ga. App.
(134
Life
“Where
who
upon
limitations
the
solicited the
authority
agent
insured to enter into the contract were
contained
policy
itself,
are to be deemed
they
as
to matters
referring
occurring
to the issuance of the
and
subsequently
policy,
do not
apply
facts or conditions which were
at the
existing
of the
inception
contract.
In such a case the
of the
knowledge
is the knowl
insurer,
of the
and if a
edge
issued with
policy
knowledge
a fact
agent of
or condition which by the terms of the contract
void,
would render it
the insurer will be held to have waived the
n
of such
condition,
existence
fact or
will
policy
not be
Co.,
thereby.
voided
Johnson v. Ætna Insurance
When we in apply principles announced the decisions as to the they apply above quoted, contentions of the plaintiff in record, by error as revealed court did err in overruling or in a new the demurrers trial. denying J., Broyles, J., G. Judgment and MacIntyre, concur. affirmed. ON MOTION ROE REHEARING.
On its motion counsel rehearing for plaintiff in error ear- contends that this court nestly overlooked paragraph 5 of and the evidence sustaining answer allegations of same. The reads: “This defendant paragraph shows that its agent was not bind the authorized to company by any receipt or writing and that the terms were policy on binding the insured and that the by insured was bound these provisions, the on policy this paragraph shall ‘The of this be con- acceptance policy everywhere stated: read, evidence that it has been as incontrovertible under- strued the insured and beneficiary. subject and accepted by stood on this and the terms and reverse side hereof. provisions to the observed, are not in all respects If these terms this provisions all shall become void and thereunder thereupon rights policy forfeited/” another of industrial outstanding policy travel and
Concerning error, on the insured by plaintiff insurance pedestrian substantiate the same in a on the appears provision evidence to re- as follows: “If question reading verse side of the another policy or pedestrian policy, industrial travel and policies, previously insured, herewith, be force company concurrently maximum indemnity $1000 excess of aggregate this making excess insurance and shall becomes be void and all pre- shall, demand, hereunder upon miums be paid returned to the entitled person properly or the thereto. The company know of the not be presumed shall existence any prior policy, shall the issuance of not be deemed a waiver of this condition.” a
The above is sued provision on. No other introduced and the nearest approach of any evidence to if indeed it could be sustain such construed plea, to be sufficient issue, is the raise such “But following: they a paid claim Mr. Broekett had with another contract the company.” There is whatsoever that the other no evidence contract was an “industrial 'The policy.” travel and for the pedestrian testi- *8 all types applications fied: “I took of insurance written by and collected premiums.” my company Rehearing denied. LIFE MUTUAL INSURANCE 29429. COMPANY v. OLLIFF.