147 Ga. 287 | Ga. | 1917
The Court of Appeals has requested instruction upon certain questions of law, one of which, though expressed in several different ways, relates to one proposition, namely, can a forfeiture of a life-insurance policy be declared on the basis of a provision in a promissory note given for a premium on the policy, declaring that the policy shall be forfeited if the note should not be paid at maturity, the policy itself containing no such provision ? This question goes principally to the form of the contract. A contract of life insurance is required by statute in this State to be in writing. ■ Civil Code, §§ 2470, 2499. The statute also provides that "all life and fire insurance policies issued upon the life or property of persons within this State, whether issued by companies organized under the laws of this State or by foreign companies doing business in this State, which contain any reference to the application for insurance, or the constitution, by-laws, or other rules of the company, either as forming part of the policy or contract between the parties thereto,' or having any bearing on said contract, shall contain, or have attached to said policy, a correct copy of said application, signed by the applicant, and of the by-laws referred to; and unless so attached and accompanying the policy, no such constitution or by-laws shall be received in evidence, either as part of the policy or as an independent contract, in any controversy between the parties to of interested in the said policy, nor shall such application or by-laws be considered a part of the policy or contract between such parties.” Civil Code, § 2471.
This statute is restrictive of the common-law right to contract,
2. The ruling announced in the second headnote requires slight elaboration. Upon the principle applied in the preceding division, the policy, the note, and the receipt issued and received respectively by the same parties are to be considered together. The latter changed the original contract expressed in the policy to the extent specified. > When so considered, the validity and effect of the contract as amended are to be considered as if the stipulations .introduced by the terms of the note had been contained in the policy originally. The ruling in Hipp v. Fidelity Mutual Life Insurance Co., supra, becomes applicable. It was there said: “While the taking of the notes in lieu of a prepayment in cash waived such prepayment or postponed the time of payment, it did so on the terms agreed upon. It did not operate both to waive the prepayment in cash and also to waive the express terms and conditions on which the postponement of payment was agreed upon. In such a case a failure to pay the notes at maturity would terminate the policy;” citing Bank of Commerce T. New York Life Ins. Co., supra. In French v. Columbia Life & Trust Co., supra, it was said: “If the plaintiff has any rights at all, they are preserved by the notes, and, unless waived, the same provisions which preserve those rights also measure them. It makes no difference whether the policy or the note alone contains the provision for the forfeiture of the policy if the premium note is not paid; in either event the giving of the note is regarded only as a postponement of the time for payment, and not as a payment of the premium; and unless a forfeiture is prevented by a waiver, or is otherwise defeated, a failure to comply with the terms of the notes will terminate the policy.” In the eases cited, the rulings were based on the terms of the contract whereby both parties were concluded. Upon like principle it has been held, that where an unconditional note has been accepted as payment of a premium, the insurer will