Neal v. Cray

124 Ga. 510 | Ga. | 1905

LumpKIN, J.

(After stating the facts.) 1. A policy of insurance may provide that the failure to pay any premium or any notes or interest upon notes given to the company for any premium, on or before the dates upon which such premiums, notes, or interest shall become due, shall avoid and nullify the policy without action on the part of the company or notice to the insured or beneficiary; and such a provision is valid and binding; 2 Joyce on Insurance, §1205. A condition of this character may be waived, or the company may be’ estopped from asserting it. Thus prompt payment may be waived by a course of dealings calculated to cause the insured to think that the exact time specified would not be insisted upon, and which' would operate as a fraud upon one relying on such custom or usage in dealing with him, if suddenly changed without notice. Grant v. Alabama Gold Life Ins Co., 76 Ga. 575; Cotton States Life Ins. Co. v. Lester, 67 Ga. 247; Alabama Gold Life Ins. Co. v. Garmany, 74 Ga. 51. If the insurance company, with knowledge of the facts, receives and retains past-due premiums after the day specified in the contract for payment, it renews the contract and waives forfeiture for non-payment, where such acceptance is unconditional. 2 Joyce on Ins. §1364; Wyman v. Phoenix Mutual Life Ins. Co., 45 Hun (N. Y.), 184; Rice v. New England Mutual Aid Society, 146 Mass. 248; Mobile Life Ins. Co. v. Pruett, 34 Ala. 488 (8); Piedmont Ins. Co. v. Lester, 59 Ga. 812; Clark v. Minor, 73 Ga. 590. If the note given for the premium had not been paid at maturity according to the terms of the contract, a forfeiture would have resulted. But if after its maturity the company had received payment of it, the forfeiture would have been waived and the policy renewed. Instead of payment being made in money, the agent represented that the policy would be continued in force upon the giving of a renewal note. This was done, and the note was received by the company and indorsed by it for collection. It had' notice of the terms of its own policy, and that the note given for the premium for the current jrear had not been promptly paid. It saw fit to deliver up the original note and accept in lieu thereof another due at a future date. It could not receive payment of a premium due for the year and at the same time insist on a forfeiture for non-payment. So likewise, when it accepted a renewal of the note due for the current premium, treated such new note as valid, and indorsed it to another who is seeking to collect it by suit, the company can not assert that the policy was void because the renewal was made after the former note became due. Mere demand for a past-due premium has been held not to constitute a waiver of .forfeiture, where such payment was refused by the insurer. Sullivan v. Conn. Indemnity Asso., 101 Ga. 809; McCroskey v. Hamilton, 108 Ga. 640, 646; National Life Asso. v. Brown, 103 Ga. 382. If payment had been made when demanded, a waiver would have resulted. Here surrender of the old note and the acceptance of the note payable in the future for the premiums of the then current year, made after the failure to pay the first note promptly, and with full knowledge of the facts on the part of the company, operated as' a waiver of. forfeiture as completely as if payment had been made in cash. Gray, the agent, said that the policy would remain of force; and, in view of the facts as indicated in the foregoing opinion, he was right. v •

It is said that under the terms of the contract the agent was without authority to waive a forfeiture. But after he had taken the renewal note, the company received, held, and indorsed it; and one of its agents, as indorsee, is suing upon it. ■ The forfeiture was therefore waived, the renewal note given by the insured was collectible, and the defense set up was without merit. The defendant also knew all the facts when she gave the second note. Atlanta Consolidated Bottling Company v. Hutchinson, 109 Ga. 550; Hogan v. Brown, 112 Ga. 662; Mutual Reserve Fund Life Asso. v. Stephens, 115 Ga. 192. .. '

2, 3. In this State an indorsee for collection has such a title as to enable him to bring and maintain a suit in his own name. Wilson v. Tolson, 79 Ga. 137; Freeman v. Exchange Bank, 87 Ga. 45, 47. The authority of Lowry & Son to indorse the note for the company was not denied under oath; but on the contrary the defendant admitted a prima facie case in favor of the plaintiff. Civil Code, §3705; Habersham v. Lehman, 63 Ga. 380; Tyson v. Bray, 117 Ga. 689.

4. It is contended by defendant that her husband paid the interest on the note to its maturity, and that the verdict directed included $1.80 interest when it should have been only $1.62, thus making eighteen cents in excess of the correct amount of interest. This would seem to furnish a proper ease for the application of the maxim de minimis non curat lex. Neal v. Brockhan, 87 Ga. 130. Certainly the evidence is not sufficiently clear to require a reversal or a correction of this slight error, if indeed it be one. The entire testimony on this subject is contained in the following statement of the defendant’s husband: “I did pay the interest on the note when this last note was given. Mr. Gray told me my wife would have to pay the interest.” This does not show how much interest was paid, •or to what time.

The defendant having admitted a prima facie case against her, and having failed to establish any lawful defense, there was no error in directing a verdict.

Judgment affirmed.

All the Justices concur.