42 Ga. App. 690 | Ga. Ct. App. | 1931
Lead Opinion
(After stating the foregoing facts.) Something might be said in elaboration of the rulings stated in the fourth and fifth headnotes. We recognize the rule, as laid down in Sovereign Camp Woodmen of the World v. Shaw, 143 Ga. 559 (85 S. E. 827), that under the terms of the constitution and bylaws of the defendant fraternal beneficiary association, upon failure of a member to pay monthly dues by the 20th day of any month his suspension automatically resulted, without affirmative or judi
It is admitted by the secretary at Dallas that the dues for October and November had been, paid, but he fails to testify as to when such payments were made. The witness Lester attempts to connect the payment made on December 5 with the dues for October and November, but aside from such testimony by Lester there is no evidence going to indicate that such payment related to the October and November dues, or when the October and November dues were paid. In the absence of anything to the contrary, the jury were authorized to infer that Blackburn made his payments for October and November in regular course, that is, by the 20th day of each month, and such a presumption is not contradicted by the Dallas secretary or by any testimony other than that of Lester. With respect to the date of the last payment of dues made to Lester, after the lapse on February 20, Lester was contradicted by Daniel, who testified positively that the payment made by him on behalf of the
Eliminating, therefore, the testimony of the witness Lester, there was sufficient proof on behalf of the plaintiff to show payment of dues for the months of December, 1925, and January, 1926, by virtue of the payment made on December 5, 1925, and a subsequent payment for the purpose of reinstatement within the terms of the contract of insurance. Without Lester’s testimony, the jury were authorized to infer that the decedent, on December 5, 1925, owed the defendant nothing except the dues which had matured on the first day of that month, and that the payment made on December 5, 1925, evidenced by Lester’s receipt, covered dues for the months of December and January, that no further dues became payable until February 1, and the decedent did not fall in arrears until February 20, 1926. The payment thereafter made by McDaniel on the insured’s behalf, which, according to the testimony of M'c-Daniel, was made prior to the accident and at a time when there appears to be no dispute that the insured was in good health, was sufficient to cover dues for the current month and for the succeeding month, so as to render the insurance of force on the date of the insured’s death. See, in this connection, Starnes v. Atlanta Police Protective Asso., 2 Ga. App. 237 (58 S. E. 481); Farmers Mutual Life Asso. v. Elliott, 4 Ga. App. 342 (61 S. E. 493); Farmers Mutual Co-operative Fire Ins. Co. v. Kilgore, 39 Ga. App. 528 (148 S. E. 18). Accordingly, the charge of the court dealt with in the 4th headnote was not inapplicable, and the verdict in favor of the plaintiff is authorized by the evidence.
Judgment affirmed.
Rehearing
ON MOTION EOR REHEARING.
Although the opinion in this case was not delivered by the court until February 17, 1931, as set forth in the motion for rehearing, it had been considered in conference by the court for many weeks before, and all the members of the court
There is no dispute that the decedent was insured by the defendant company. There is no dispute that, including the last payment, all the premiums on the insurance were paid to the local collector of the lodge and -forwarded to the home office, and that the last premium, subsequently returned, was received by the home office and held by it several weeks. The only disputed question was when the payments were made and what months they represented. As set forth in the original opinion, if we eliminate the testimony of the impeached witness there is nothing which absolutely demands a finding such as is contended for by the insurance company, although the Dallas secretary swore that no dues were paid for November or any month thereafter. This question has been dealt with at length in the original opinion. It is true, as pointed out in the motion for rehearing, that Allen, the defendant’s Dallas secretary, did swear that no dues were paid for the insured “after November or for any month thereafter,” and stated that, as a consequence thereof, the insurance lapsed finally on December 20th. This is the testimony most strongly relied upon to establish such a lapse as required a medical certificate for reinstatement. But it seems undisputed that Blackburn did make a 'payment of $4.40 on December 5, 1925, and Lester, the local collector, issued a receipt therefor. This contradicts the testimony of Allen that no dues were paid “after November.” Allen further testified, as is pointed out in the motion for rehearing, that Blackburn lapsed in August, “but reinstated properly in September; paid dues for September, October, and November.” He does not testify that the insured lapsed in October. If, as contended by counsel for movant, the payment made on December 5, 1925, was to cover the dues of Blackburn for October and November, 1925, and dues for October and November were not paid until then, then there had been a
But it is contended by the plaintiff in error, in the motion for rehearing, that the testimony of Boozer, who was a district representative of the defendant company, shows that the payment of December 5 was for October and November dues. It is true that Boozer did testify, as set forth in the motion for rehearing, that “I know positively that this receipt was for October and November dues,” but he further stated the source of this information as being a statement made by Lester, and that he based his conclusion on the fact that the week prior to Blackburn’s death he tried to get him [Blackburn] to reinstate, and that he received informa
Plaintiff in error now contends, for the first time, that under the suit as brought, the plaintiff set forth, and proceeded on the theory, that she had fully complied with the terms and conditions of the policy as respects the filing of proofs of loss, and that, therefore, she was shut into the case as made, and could not, upon the trial, rely upon a waiver of such proofs by an absolute refusal to pay; citing Liverpool &c. Ins. Co. v. Ellington, 94 Ga. 785 (21 S. E. 1006); Hampton v. Thomas, 11 Ga. 317; New Zealand Fire Ins. Co. v. Brewer, 29 Ga. App. 773 (116 S. E. 922). We recognize the rule laid down by this court in the Brewer ease, but we do not think it has application here. On the trial of the instant case, it was admitted, both by the pleadings and by the evidence on behalf of the defendant, that there had been a refusal to pay the amount of the policy, and the whole pressure of the trial was around the question whether the policy had lapsed. It was alleged by the petition both that there had been a compliance with the requirements concerning proof of loss and that there had been a refusal to pay the loss, which' refusal was admitted by the answer. The ruling of this court, which is set forth in the first division of the
In the motion for rehearing there seems to us to be nothing that requires a rehearing of the case, which, as stated, has already had long and serious consideration by all the members of the court, or that requires a holding that the verdict is absolutely and entirely without any sort of evidence to support it.