51 Ga. App. 862 | Ga. Ct. App. | 1935
Mrs. Smith sued the Metropolitan Life Insurance Company on a policy of life insurance of which she was the beneficiary. The policy was issued on January 1, 1931. Her husband, the insured, was accidentally drowned on October 25, 1931. The defense was that before the death of the insured the policy
According to the terms of the policy, the premiums were to be paid monthly, $2.42 each month. The basic rate was $1.99 per month, which was increased to $2.42 by a supplemental contract providing for disability benefits, and doubling the principal indemnity in the event of death as a result of “bodily injuries sustained through external, violent, and accidental means.” Among the terms of the policy were these: “This policy is issued in consideration of . . the payment . . of one dollar and ninety-nine cents (which maintains this policy in force for a period of one month from its date of issue, as set forth below), and of the payment hereafter of a like monthly premium on each first day of every month (hereinafter called the due date).” The additional payments for the further benefits were to be made simultaneously with and under the same conditions as the regular premiums. “All premiums are payable on or before their due dates, at the home office of the company, or to an authorized agent of the company, but only in exchange for the company’s official premium receipt signed by the president, vice-president, actuary, treasurer, or secretary of the company and countersigned by the agent or other authorized representative of the company receiving the premium. The payment of a premium shall not maintain this policy in force beyond the due date when the next premium is payable, except as hereinafter provided. A grace period of 31 days . • . will be granted for the payment of every premium after the first, during which grace period the insurance shall continue in force. . . No agent is authorized to waive forfeitures, to alter or amend this policy, to accept premiums in arrears or to extend the dire date of any premium.” The policy carried on its face the receipt for the first monthly premium. It was issued in January, and the insured died on October 25. Allowing the 31 days grace in payment of premiums, as provided for in the policy, it is obvious that unless nine-months premiums were paid to the company, the policy had lapsed before October 25. It was necessary for the evidence to show payment of premiums for January, February, March, April, May, June, July, August, and September, before Mrs. Smith could recover.
Counsel for Mrs. Smith lay stress on the fact that the check was payable to the company, and insist that if the insured’s intention had been to reimburse Malcolm on account of money advanced, it would have been made payable to Malcolm. This contention seems to be sound. The date of the check is May 6. On May 1 another premium had matured and was unpaid. It is hardly possible that 'the insured intended this check to discharge both the May 1st and
The next entry on the company’s sheet is receipt, on June 23, of the May premium. As to this Malcolm testified, “That premium also was paid by me for the month of May.” This payment by Malcolm left the insured’s indebtedness on July 1 as follows: June and July premiums due the company, $4.84, and three payments (counting one as paid out of the check of May 6) due to Malcolm for money advanced, $7.26—two of the premiums which Malcolm had advanced for February, March, and April, and the one for May. On July 13 the insured gave to Malcolm another check for $4.84, payable to the company, which Malcolm handled as he had handled the other check, by turning it in to the cashier and taking out of other cash funds in his possession the $4.84. In other words, he applied the amount of the check to his personal debt
In connection with the July payment a receipt was introduced m evidence, reading, apparently, “6-13-31. Reed, of Carlton Smith $2.42 for June, 1931. C. A. Malcolm.” An expert witness gave his opinion that this writing had been altered. Malcolm testified that it had been written on July 13, for $4.84, and referred to the July 13, check for $4.84. There is nothing else in the record to indicate that any payment was in fact made by the insured on June 13, 1931. An inspection of the photostat copy of this receipt which appears in the record indicates that the receipt was tampered with in at least one place. It is immaterial whether this receipt shows another pajunent of either one or two premiums. Without this receipt the evidence is sufficient to authorize the inference that sufficient premiums were paid to prevent the lapsing of the policy before the death of the insured October 25, 1931. This will be seen later. On August 1 the situation was this: the insured owed the company $2.42 for the August premium, and owed Malcolm the $7.26 for money advanced. In August a pajunent was made in cash by the insured to Malcolm, the amount being $4.84. Malcolm testified that- the insured gave him a five-dollar bill, and that he gave the insured 16 cents in change. As to the circumstances of this pajunent the evidence is in conflict. A witness, Hallman, testified that he saw the insured give the $5 to Malcolm, that this was “about the 27th,” but he does not say what month; that it was “just before he was going away on his vacation at the time he was
It is clear that Malcolm received this August payment of $4.84 in cash "for two-months premium,” and turned the money in to the company, and that the company entered it on its books as coming from the insured. The entry is dated August 13; and as the insured then owed the company only $2.42 for the month of August, the retention of the whole $4.84 must be applied to cover the premium which was to become due on September 1. It can not be said, under all the circumstances as to this payment and the conflict in the evidence, that the jury was not authorized to find that this $4.84 was a pajunent of the premiums for August and September. See Metropolitan Life Insurance Co. v. Vickery, 49 Ga. App. 727 (176 S. E. 815). The evidence authorized the inference that all the premiums had been paid to October 1. As there was a grace period of thirty-one days for the payment of the premium due October 1, the policy had not lapsed on October 25, the date of the insured’s death.
The plaintiff in error complains of the admission in evidence of the testimony of Hallman as to a payment by the insured to the agent Malcolm, on the ground that the payment did not show a payment of the premium to the company, because no official receipt was given, that there was no evidence to show that the payment was actually turned over by the agent to the company, and that the agent denied receiving the payment at the time and place
It appears that after several hours deliberation the foreman reported that the jury was deadlocked, and asked if it would be in order for the stenographer to read to the jury certain evidence of the witness Malcolm. The court sent the jury out, and discussed the item with counsel. Counsel agreed that the testimony of Mrs. Smith, Hallman, and Malcolm be read to the jury. Although advised of the agreement, the court did not recall the jury and did not have read to them the evidence referred to. About three hours later the jury returned a verdict for Mrs. Smith. The plaintiff in error alleges error because the court should have had the evidence read to the jury or should have declared a mistrial. No motion for mistrial was made. The matter of causing the testimony to be read to the jury was within the discretion of the trial judge.
It is undisputed that all payments made by the insured were made to Malcolm’ and were made in payment of premiums on the policy, either in reimbursement of Malcolm for premiums advanced or directly to him in payment of premiums due on the policy. The insured at no time owed the company anything except premiums due on this particular policy. Therefore when any pajunent by the insured reached the company it was necessarily a payment on the premiums due to the company on this policjr, if any such premium at the time was due. The inference is conclusive, as a matter of law, that if the proceeds of any payments made by the "insured were received by the company when a premium was due, the payment was in payment of such premium. Therefore a charge by the court to the jury, that if the monthly premiums were paid by the insured to the agent Malcolm, and the company' received the proceeds of the payments during a'month “when the monthly payments were currently due, the presumption would be that such payments were intended to be applied in payment of the current monthly premiums, and not in reimbursement to the agent as per
The plaintiff having written off from the verdict as returned an amount representing damages for delay, and attorney’s fees, the grounds of the motion for a new trial which relate only to those items will of course not be considered. The verdict for the plaintiff, in a sum exclusive of the amount found as damages and attorney’s fees which were written off, was authorized; and no error appears. The court did not err in overruling the motion for a new trial.
Judgment affirmed.