12 Ga. App. 186 | Ga. Ct. App. | 1913
This case raises a question as to the bearing of section 4530 of the Civil Code upon an allegation in the plaintiff’s petition, averring 'a waiver of the forfeiture in the contract of insurance if the person insured was not in good health at the time of the issuance of the policy. There was a demurrer to the original petition, upon the ground, among others, that the petition did not allege that Dillard Wiley, the person insured, was in sound health, or an insurable risk, at the time the policy was delivered. The plaintiff amended the petition by alleging that the person insured was examined, as required by the defendant, as a condition precedent to the issuance of the policy applied for, and that at the time the examination was made, he was suffering from tuberculosis “in the advanced second stage;” that the affection at that stage “is easily detectible by a practicing physician with the use of ordinary care;” that the physician who made the examination in behalf of the company knew, or ought to have known, and by the exercise of ordinary care could have known, of said affection; and that the application for insurance was made in good faith, and without knowledge of the unsoundness of Dillard Wiley’s health. The court sustained the demurrer and dismissed the petition. The present writ of error challenges that judgment, not upon the ground that the defendant was chargeable with knowledge of all the facts which it might, by the exercise of ordinary care, have ascertained before entering into this contract (for this intention is expressly disavowed)', but upon the ground that if the defendant had notice sufficient to put it upon inquiry, it was bound to pursue the inquiry with reasonable diligence, and was chargeable with knowledge of all facts to which such inquiry, conducted with ordinary care, might have led. This is at least implied notice, or implied actual notice; for counsel for the plaintiff in error did not seriously contend that a waiver can be based upon constructive notice.
It is of course well settled that an insurance company is charged with knowledge of all pertinent facts which have come to the knowledge of its duly authorized agents; and, thus, notice to an agent is notice to the principal. This is implied actual notice, and actual notice to the agent is imputed to the principal; but the rule does not include implied constructive notice and charge the principal with implied knowledge of facts which the agent might, in the exercise of ordinary care, have acquired, but did not in fact possess, because he did not use ordinary diligence. In a case where the agent has actual knowledge, the company has notice;
Counsel for the plaintiff in error insist that as knowledge is purely intangible,’ and as, in the absence of an admission of knowledge by the person charged therewith, it would be practically impossible to prove that such a person did in fact know the facts in dispute, to require a party seeking to establish a waiver to prove actual knowledge on the part of the opposite party would be to impose upon him an impossible task. It is not necessary for us to pass upon this contention, for the reason that the point is here presented by demurrer, and the petition in any case could state that the agent of the company knew the fact by which it is sought to establish a waiver, if the evidentiary circumstances in support of that conclusion were sufficient to satisfactorily establish actual knowledge. And while it may be difficult to prove the existence of actual knowledge on the part of one who denies it (because in such case direct evidence is not attainable, unless he admits it), nevertheless, even actual knowledge can be demonstrated by the proof of circumstances which will admit of no other reasonable conclusion than that the party who asserts his ignorance of a given fact actually knew it, and that his denial is untrue. The case of Hayes v. E. T., V. & G. Ry. Co., 89 Ga. 264 (15 S. E. 361), is not in point. Counsel for the plaintiff in error cite a ruling of the Supreme Court of Maryland, to the effect that where an agent of
The trial judge did not err in sustaining the demurrer.
Judgment affirmed.