138 Ga. 778 | Ga. | 1912
The insurance department of the Supreme Lodge Knights of Pythias issued a certificate of membership to Leon I. Few on the 1st day of November, 1907, insuring his life in the sum of $2,000 for the benefit of his wife, Mattie M. Few. This certificate was delivered to Leon' I. Few, the insured, on the 2d day of November, 1907. The first monthly payment, or premium, necessary to put. the certificate of insurance in force was made on the 20th day of November, 1907. The insured died on the 22d day of February, 1908. Proofs of the death of the insured were duly made and presented to the insurer, and payment of the certificate was refused. Subsequently Few’s widow, Mattie M. Few, for whose benefit the certificate or policy was taken out, brought suit in Morgan superior court for the amount stated in the certificate. The defendant filed its answer, setting up various defenses to the
“The contract evidenced hereby shall not begin until twelve o’clock noon of the day of the date hereof, and then the Supreme Lodge Knights of Pythias, hereinafter called -the Society, will not be liable unless the said member has actually paid the membership fee and made the first monthly payment required while said member is in good health.
“Said monthly payments will be due and payable to the Secretary of the Section to which the member belongs, without notice, in advance, on the first day of each and every month. Failure to .make any such payment on or before the 20th day of the month for which the same is due shall, ipso facto, from and after such
“All of the conditions and provisions of the contract between the member and the Society are conditions precedent to any liability of the Society hereunder, and are to be deemed to be assented to and accepted without the necessity fqr the member’s signature being affixed hereto.
“The Supreme Lodge Knights of Pythias is incorporated, and is a Fraternal Beneficiary Society, .and no officer or representative thereof, or of any subordinate body thereof, has any right or power, by any statement, agreement, promise, or manner of transacting business, to waive the provisions or requirements of the contract between the member and the Society, or of the laws, rules, and regulations of the Society.”
In construing portions of the conditions in the policy, this court on the former review of the ease, held: “The certificate containing the further provision that ‘no officer or representative thereof, or of any subordinate body thereof, has any right or power, by any statement, agreement, promise, or manner of transacting business, to waive the provisions or requirements- of the contract between the member and the society, or of the laws, rules, and regulations of the society,’ if the first monthly payment was made, not at the inception of this contract, but subsequently to the date of the certificate and while the member was not in good health, acceptance of such payment by a representative of the society, .authorized to collect premiums for the latter, with knowledge at the time on the part of the representative that the insured was not then in good health, would not be a waiver by the society or estop it from contending that it was not liable because the insured was not in good health when the payment was made. Springfield Fire &c. Ins. Co. v. Price, 132 Ga. 687 (64 S. E. 1074); 3 Cooley’s Briefs on Insurance, 2513. Aliter if delivery of the certificate 'and acceptance of the premium were contemporaneous. Mechanics & Traders Ins. Co. v. Mutual Real Estate & Building Association, 98 Ga. 262; Johnson v. Ætna Ins. Co., 123 Ga. 404 (51 S. E. 339, 107 Am. St. R. 92), followed in Athens Mutual Ins. Co. v. Evans, 132 Ga. 703-711 (64 S. E. 993). Under the evidence submitted, it was for the jury to determine whether the insured was in good health when the first monthly payment was made on November
If the delivery of the policy and the payment of the first monthly premium to the society were contemporaneous acts within the meaning of the policy, so as to make it binding only from the 20th day of November, 1907, was the contract' void because of the condition in the policy that the society will not be liable unless the member has actually paid the membership fee and made the first monthly payment required “while the member is in good health”? It is insisted that at the time of the application and payment of the first monthly premium the insured was not in good health. The reply is, that the agent of the society knew that the insured was not in good health after the application was received and when the first monthly premium was paid; and the unbroken line of decisions in this State is to the effect that where a contract of insurance contains conditions and stipulations that the policy shall
Judgment reversed.