104 Ga. 256 | Ga. | 1898
On March 12, 1888, John M. Robinson made an application to the Massachusetts Benefit Life Association for a policy of insurance upon his life for the sum of three thousand dollars. To the application was attached the following certificate : “I, John Madison Robinson, of Atlanta, County of Fulton, State of Georgia, do hereby warrant each and all the foregoing particulars and statements to be true, and that I have not in this application for above-named contract concealed or withheld any material circumstance, or information, concerning the past or present state of my health or habits of life; and I do hereby acknowledge, consent and agree that any untrue or fraudulent statements made above by me or any one else, or to any medical examiner of said Massachusetts Benefit Association, or any concealment of facts by me or any one else, may forfeit and cancel all rights to any benefit under the above-named
On March 17, 1888, the policy was issued, and contained, among others, the following stipulations: “That the statements and declarations made by and on behalf of said member in his application to become a benefit member of said association,
The application upon which this policy was issued had attached to it and signed by the insured the following certificate: “I do hereby warrant that each and all of the particulars and statements contained in this application for insurance are true, and that I have not, in either part of said application for above-named contract, concealed or withheld any material circumstance or information concerning the past or present state of my health, or habits of life; and I do hereby acknowledge, consent and agree that any untrue or fraudulent statement made therein by me, or on my behalf, or to any medical examiner,
On February 14, 1891, the insured had applied for a policy in the sum of two thousand dollars, the application being exactly the same as the application attached to the policy for five thousand dollars, except that across the margin was written the following words, to wit: “See old application;” and indorsed on such application was the following: “To agents and examiners: Answer questions as to drinking habits explicitly; such terms as temperate, moderate, etc., will not do. Save yourself and us much trouble and delay by seeing that all questions are answered fully and precisely before sending application to the home office.”
Written notices were sent by the association» the insured, notifying him of the amounts to be paid and thefcne in which the premium should be paid, each notice specimng that the amounts therein stated must belaid within thirty days from the date of the notice. On October 27, 1892, such a notice was sent by the association and received by the insured, calliim^' for the payment of $23.57 within thirty days from its data On December 15, 1892, a receipt for the premium due in the
On February 28, 1894, the insured signed and transmitted
The insured died on June 29, 1894. On January 24, 1895, Mrs. Robinson brought suit against the association upon the policy of insurance issued February 27, 1891, for the sum of five thousand dollars. The prayer of the petition was for a recovery of the principal of the policy with interest thereon, and also for attorneys’ fees and damages alleged to be due on the ground that the association had acted in bad faith in re
These ancient and well-settled principles, applicable alike to all contracts of insurance, having their origin in a desire to promote truth and further the ends of justice, in their application in particular cases have sometimes been the cause of grave injustice and palpable wrong, especially in cases arising under contracts of life-insurance. Suits upon such policies have been defended, often successfully, upon the ground that the statements made by the insured in his application were of such a character as, under the law and the terms of the contract, the policy would be vitiated. In a number of such cases," where the courts were compelled, under the laws relating to such matters, to sustain the defense set up by the insurer, it was clearly apparent that if the objection urged after the death of the insured had been raised during his lifetime, an explanation could have been given of that which, under the strict rules of law, without an explanation, was required to be construed as a misrepresentation vitiating the contract of which it formed the basis. In many cases,, no doubt, the misrepresentation would be innocent, with no intention to defraud the insurer; while in others possibly a deliberate intention to defraud might be developed. In all cases, however, the question as to whether there had been any intention on the part of the insured to perpetrate a fraud upon the insurer, and whether such scheme should be successful, was to be determined after the death of insured, when he could no longer be heard on the questions involving not only the validity of his contract, but sometimes his character as well. The insurer, having in his hands the premiums paid by the insured during his lifetime, as well as the accumulations which had been made thereon, was permitted to ra^se questions of this nature in a controversy between himself and the beneficiary of the policy, and was, as has been said, in many cases allowed to defeat entirely the contract entered into with the insured, when’ he cofild no longer be heard in explanation of his conduct or in vindication of his character.
The object to be secured in a contract of life-insurance to
The contract entered into between the insurer and the insured in the “incontestable clause” is, in effect, that the insurer says on his part, pay me your premiums according to the terms
A policy providing generally that it should be incontestable from its date, but silent on the subject of defending upon grounds originating in fraud, would still be a valid contract; the waiver of the right to defend on the ground of fraud not being the subject of express stipulation, the law would imply that the insurer intended to reserve to himself the right to defend upon that ground. If, however, the policy stipulated that it should be incontestable from its date, and the insurer should not be allowed any defenses, whether originating in fraud or otherwise; or if it were clear from the terms of the contract that it was the intention of the parties that fraud should not be a defense,
As the law may prescribe such a limitation in which actions shall be brought by the party to be affected, it is also within the power of the contracting parties to agree among themselves upon a period of time which would amount to a statute of limitations, either greater or less than the period fixed by the law. Western Union Tel. Co. v. James, 90 Ga. 254; Brown v. Sav. Ins. Co. 24 Ga. 97; Phenix Ins. Co. v. Melson, 97 Ga. 723; Ritch v. Masons Acc. Asso., 99 Ga. 112. The period fixed by law being intended for the benefit of the parties interested in the contract, and for their protection, it is competent for them to stipulate that the time which the law gives them to act shall be shortened on the one hand, or lengthened on the other. Parties interested in the contract may waive the benefit of the statute of limitations fixed by the law, the effect of the waiver being either to make a longer or shorter period than the law prescribes. What is said above would seem, however, to be
The question now under discussion has been the subject-matter of very few adjudicated cases, there being only one, so far as we have been able to find, where the question was directly involved and decided. In the case of Wright v. Mutual Benefit
As the terms of the incontestable clause in the present case were broad enough to exclude the defense of fraud, and as the time fixed in which the fraud must be discovered, if any had been perpetrated, was three years, and as this is beyond question a reasonable time, we feel no hesitancy in holding that the contract was valid, and that there was therefore no error in the ruling of the court below, that the insurer could not set up as a defense to a suit on the policy any ground growing out. of misrepresentation or concealment, although amounting to a fraud, after the policy had been in force three years and three full yearly payments had been made thereon, there being no question of misrepresentation as to age. The present case is-one peculiarly appropriate for an application of these principles. The very matter now set up to defeat the policy, that is,, habits of drunkenness of the insured, was so public and notorious in the city in which he lived, that it is manifest from the.record that a letter addressed to any prominent business man or any city official, at any time between the date of the first-application for insurance to the date of the death of the insured, would have disclosed practically the state of affairs now shown to have existed.
There being no evidence before the trial court as to what, the law of Massachusetts is as to contracts like the one in question, it will be presumed that the common law is of force there on the subject. Railroad Company v. Lacy, 43 Ga. 461;
In Simpson v. Life Ins. Co., 20 S. E. Rep. (N. C.) 517, the defendant agreed that “all restrictions of travel, occupation, or residence, expressed in the original policy,” should be waived, and that the “policy should be, from the date of that agreement, incontestable,” and it was added that when the policy
But it is contended by the defendant, that the policy had lapsed, and that the payment of the premium on December 15, 1892, and the health certificate dated December 19, were a part of one and the same transaction, and that the reinstatement took place upon the performance by the insured of two conditions, that is, payment of the premium, and furnishing the health certificate, the difference in the dates being due to the fact that the premium was received immediately on the day that the contract of reinstatement was entered into, but that the health certificate was subsequently forwarded. There is no evidence to this effect, but it is claimed that such a state of facts is necessarily to be inferred from the existence of the two papers usual in such transactions bearing date within a few days of each other. If the health certificate bore date before the premium receipt, the inference might be as contended for. The defense rests upon a forfeiture. Forfeitures are not favored by the law, and if it were allowable to establish them by inference alone, certainly they can not be established by inferences antagonistic to the presumption arising from an admitted writing of the person setting up the forfeiture. It is further contended, that the health certificate contained statements which were untrue in regard to the health of the insured, that the reinstatement had taken place upon the faith of the certificate, and, being thus procured by fraud, was void. The question as to whether the reinstatement had been procured by fraud was submitted to the jury. There was evidence, as is above shown, which would require the jury to find that there had been no lapse, the payment and the receipt of the premium on December 15 being a waiver of the right to treat as a forfeiture the failure to pay on November 27. There was also evidence which would have warranted the jury in
That the lex loci controls as to the validity, form, and effect of the contract, and the lex fori as to the remedies thereon, is simply a statement of elementary law. The courts of the State of Georgia will recognize this contract as a valid contract, because it appears to be such under the laws of Massachusetts and is clearly such under the laws of this State, but will give the plaintiff and the defendant respectively, for the purpose of enforcing it on the one hand or defeating it on the other, such remedies only as are given to other persons who sue or are sued in the courts of this State. It is immaterial, therefore, for us to consider what is the law of Massachusetts in reference to the tribunal, or what part of the tribunal, that determines the materiality of the misrepresentations relied upon to defeat a contract of insurance which is the subject of a suit in this State. These are questions which each State is entitled to decide for itself, and to that end erect tribunals and lay down rules of procedure therein. The law of Georgia can declare what questions shall be passed upon by the court and what questions shall be passed upon by the jury. Persons seeking either to enforce or defeat contracts made in another State with citizens of this State, when they sue or are sued in the courts of this State, have no right to say that the tribunal fixed by its laws is not satisfactory to them and to demand a tribunal erected in accordance with the law of the State in which the contract is made. See Dicey on Conflict of Laws, 711; Story on Conflict of Laws (8th ed.), §§556, 557, 558. This doctrine is fully recognized in the case of Joice v. Scales, 18 Ga. 725, and in Toomer v. Dickerson, 37 Ga. 428. In the latter case Judge Warner in the opinion lays down the principle clearly as follows: “It was further insisted in the argument, that although the bond was executed in Georgia, it was intended to Ne, and was in fact, a South Carolina contract, and as such should be governed by
*288 “Atlanta, Ga., Feb. 16, 1891. Dr. Samuel G. Dutton, Medical Director, Mass. B. L. Asso., Boston, Mass. Dear Sir, — I write this note to you in explanation of some questions in the within application, viz. John M. Robinson. You will see, regarding his habits, that he gets on an occasional spree. Mr. Robinson is not a chronic drinker, but has in years gone by drank occasionally. I said in the application a fair risk, but in reality he is a first-class risk, and I merely make the difference on account of his past habits, as it has been several years since he drank at all. You can accept him in safety, as he is physically A number one, and will doubtlessly live his expectancy. Yours respectfully, C. C. Greene, Medical Examiner.”
“Boston, Mass., Feb. 25, 1891. To J. A. Burney, Agent M. B. A. Dear Sir, — Our medical department requests additional information upon the following point in the case of John M. Robinson: How long since the drinking habit was abandoned ?
G. A. Litchfield, Secy.
“Return this letter with answer below. Answer here.” “Atlanta, Ga., Feb. 22, 1891. About two years.
C. C. Greene, Medical Examiner.”
It -was agreed by counsel for the plaintiff that the letters should be admitted in evidence as the testimony of Greene, and should have the same effect as if he had been sworn as a ■witness in the case; and that if he would have been allowed as a witness to have answered questions which would have elicited the information which -was contained in the letters, the letters should be admitted as his testimony. It -was contended by the counsel for the defendant, as one of the clauses in the policy declared that “no agent of this association is authorized to make, fill up, or alter any such application; in doing any such act he shall be taken and considered as the agent of the applicant and not of the association,” and provided that in certain contingencies a private letter should be written by the medical examiner to the association, that Dr. Greene w7as the agent of the insured in filling up the blanks in the application and writing the letters, and that therefore his declarations were admissible against the insured and those claiming under him. If the effect of the stipulation was to make Dr. Greene
Judgment affirmed, with direction.