57 Ga. App. 418 | Ga. Ct. App. | 1938
Mrs. Pearl Whitaker sued the Sovereign Camp of the Woodmen of the World in the city court of Wrightsville alleging that the defendant is a. fraternal beneficiary association duly licensed to transact business in the State of Georgia and is indebted to the plaintiff in the sum of $1000 besides interest, damages, and attorney’s fees on a contract dated January 14, Í935, by which it insured the life of Nathan D. Whitaker in the sum of $1000, the plaintiff being the beneficiary under the contract, a copy of which is attached to the petition; that the insured died on May — 1935, and at the time of his death had complied with all the conditions of the contract and had paid all premiums, and the contract was in full force at the time of his death; that she furnished to the defendant the required proofs of death more than six months before filing the suit, that the defendant refused payment, which refusal was in bad faith, and the defendant is indebted to the plaintiff for damages and attorney’s fees.
The defendant answered the suit, admitting certain allegations, denying others, and setting up that under the terms of the bene
The plaintiff amended her petition alleging that at the time of the death of Whitaker the defendant had waived its strict requirements as to payment of premiums and assessments by its custom in dealing with the insured, by accepting premiums or assessments or dues after the first of each month during the course of the contract; that the defendant accepted every premium from the date of the issuance of the certificate, after the first of the month, and that by its course of dealing with the insured in accepting such past-due premiums the defendant thereby waived payment of the premiums on the first of each month; that the insured, at the time of his death, was a member in good standing in the Sovereign Camp by complying with the custom established by the defendant in accepting past-due premiums; that during the entire time the certificate was in force only three collections were due on the first of the month as stipulated in the contract, that the first premium was paid on the 9th of March 1935, upon delivery of the certificate, and on April 6th he paid the instalment due the company on the
The facts are without dispute. What the parties differ about is the legal consequences from these facts. The evidence showed that though the certificate of membership or policy was dated January 15, 1935, it was never delivered and accepted by the insured until March 9, 1935. On this date he paid a sum sufficient to cover’ back dues up to March 1. He did not pay his March instalment until April 6. At this time the financial secretary of his local camp, whose duty it was to collect instalments from the members of the camp and remit the money to the main office, had not made up his account and remitted his collections to the main office. He took Whitaker’s $1.72 for the March instalment and included it in his remittance to the main office, without making any note or reporting that the payment was late. When the April instalment became due and remained unpaid the financial secretary, in making his report to the main office on May 10, noted Mr. Whitaker as suspended for non-payment of the April instalment. On May 12, after this report was sent off, a Mr. McAfee paid to the financial secretary $1.72 to cover Whitaker’s April instalment. On the next day the secretary remitted the amount to the main office. Whitaker died on May 14.
The certificate sued on provided that it was issued and accepted subject to the provisions of the constitution, laws, and by-laws of the association, and provided that “if the payments required by the constitution, laws, and by-laws of the association are not paid by the member this certificate shall be null and void,” and that “should this certificate become void for any cause, acceptance of
From the foregoing it appears that the certificate was not to take effect until it was paid for and delivered personally to the insured. This was not done until March 9, when the insured signed a written acceptance and paid what appeared to be due as if the certificate had been in force since January 15. He was not obliged to take up the certificate at all. So the March payment can not fairly be considered as a waiver of any due premium because none was past due. The plaintiff in error does not claim that the certificate was made void by the delay of six days in paying the March instalment, although this delay, as stated, was not reported to the main office. Consequently it must be taken that the association waived this delay and the certificate was continued in force until April 30. The April premium was not in default until May 1. It continued in default until May 12. In his report of May 10, the financial secretary noted the default and listed Whitaker as “suspended.” On May 13, he remitted to the home office the amount of the April premium as a payment by a suspended member. Under the contract a suspended member could reinstate his certificate at any time within three months by paying the back dues, such payment being a warranty that he was in good health and would continue in good health for thirty days thereafter. Under these provisions the insurance would not be in effect until thirty days after payment of the delinquent premium, provided the insured remained in good health during that time.
It is contended by the defendant in error that the contract had been modified by a course of dealing on the part of the association
The evidence did not authorize the jury to find that the association had waived the right to claim that the insurance had lapsed because of failure to pay the April premium. The verdict was without evidence to support it. The court erred in overruling the motion for new trial brought on the general grounds.
Judgment reversed.