44 Ga. App. 596 | Ga. Ct. App. | 1932
(After stating the foregoing facts.) By the written terms of the agreement the company promised to pay only the executor or administrator of the insured; in other words, the estate of the insured was the designated beneficiary. In such a case, the general rule is that even a sole heir at law can not maintain suit upon the policy, although it may be alleged that the estate owed no debts and there was no administration. Brown v. Mutual Life Insurance Co., 146 Ga. 123 (90 S. E. 856). In the present case there was a provision usually termed a “facility of payment” clause, providing that the company might make payment to any one of several classes of persons. If this clause were eliminated, it seems clear that the general rule as laid down in the Brown case would be applicable. In Ogletree v. Hutchinson, 126 Ga. 454 (2) (55 S. E. 179), the Supreme Court held that a stipulation of this kind does not have the effect of making the person actually receiving the money under the policy the beneficiary thereunder, but that it “is merely an appointment, by the parties to the contract, of a person who may collect the amount due under the policy for the benefit of the person ultimately entitled.” So, by the written
Under the statute law of this State, the policy itself, including alterations, had to be in writing in order to be valid. Athens Mutual Life Ins. Co. v. Evans, 132 Ga. 703 (4) (64 S. E. 993). The company might have been estopped to urge the invalidity of the supplemental oral agreement if it had been made by a duly authorized agent, and if the plaintiff relied thereon to her injury. City Fire Insurance Co. v. Carrugi, 41 Ga. 660 (8); Western Assurance Co. v. Williams, 94 Ga. 128 (2) (21 S. E. 370) ; Clay v. Phœnix Insurance Co., 97 Ga. 44 (3) (25 S. E. 417); Corporation of the Royal Exchange Assurance v. Franklin, 158 Ga. 644 (1 a) (124 S. E. 172, 38 A. L. R. 626). But not so in view of the express limitations on the power of the agent as contained in the policy, and of which the plaintiff had notice, the limitations applying particularly to transactions occurring subsequently to the issuance of the policy. Lippman v. Ætna Insurance Co., 108 Ga. 391 (33 S. E. 897, 75 Am. St. R. 62); Johnson v. Ætna Insurance Co., 123 Ga. 404 (2) (51 S. E. 339, 107 Am. St. R. 92); Athens Mutual Insurance Co. v. Evans, supra; Beasley v. Phœnix Insurance Co., 140 Ga. 126 (78 S. E. 722); Davis v. Metropolitan Life Ins. Co., 161 Ga. 568 (131 S. E. 490), and cit.
Counsel for the plaintiff relies chiefly upon the decision of the Court of vVppeals of the District of Columbia in LaRaw v. Prudential Insurance Co., 56 App. D. C. 199 (12 F. (2d) 140, 49 A. L. R. 935), in which an agreement by an insurer to pay the proceeds of a policy to a relative of the insured, at the expiration of seven years’ absence of the insured, if such relative would keep the premiums paid, as was held to be1 a present election, under the facility of-payment clause, as to the person to whom payment would be made. But in that case the plaintiff alleged that all payments of premiums were accepted by the company with “full knowledge of the facts in the case.” Indeed, the agent was regarded by the court as “a duly authorized agent of the company,” and it may be that the decision in that ease should be classed with the “many cases in other jurisdictions” (New York Life Ins. Co. v. Patten, 151 Ga. 185, 186, 106 S. E. 183), which are contrary to the adjudications in this State that a limitation upon the authority of an agent “is valid and binds the insured.” Corporation of the Royal Exchange Assurance v. Franklin, supra.
Aside from all other considerations, however, we can not concur in the reasoning in that case to the effect that the agreement did not purport to modify and alter the written provisions of the policy. To do so would, as we think, be a departure from the spirit and principle of the decisions in this State, of which those
The rule of force in this State that all contracts of insurance must be in -writing is of statutory origin,, and, as was said by the Supreme Court 'in Simonlon v. Liverpool, London & Globe Ins. Co., 51 Ga. 76, 80, “many of the expressions in the cases, and, indeed, many of the cases themselves, are to be considered in view of the fact that the common law did not require such contracts to be in writing.” The common-law rule prevails in most of the States,- and apparently this is true of the District of Columbia, since the common law, except as modified by statute 'is the prevailing system in the district, and an examination of the district code and other statutes relating to the district discloses no enactment directly repealing or changing the common-law rule. Code of the District of Columbia (1929), § 171 et seq.; 32 C. J. 1113, 1115, §§ 209, 210; 12 C. J. 199, § 31; 18 C. J. 1359, § 12.
While the decision in the LaRaw case, supra, did not appear to turn upon any question as to whether the contract was one required to be in writing, it is doubtful if the court could have reached the same conclusion in a legal atmosphere such as exists in this State, resulting in part from the Georgia statute upon this subject, and from the many decisions which are inherently predicated thereon.
Judgment affirmed.