8 Ga. App. 303 | Ga. Ct. App. | 1910
William Harrison Williams secured a policy of insurance with the Empire Life Insurance Company, dated August 5, 1905, and was given a receipt for the first annual premium oh the policy, which stipulated that the regular premium up to the 5th day of August, 1906, was paid. The receipt contained a stipulation that to be valid it must be signed by the president or the secretary, and countersigned by an authorized agent of the company. It was countersigned on August 9, 1905, by Langford, Jones & Co., agents. The date upon which the secretary signed the receipt does not appear. On August 3, 1905, William H. Williams executed and delivered a note for $39.70, payable to the order of Langford, Jones & Go. This note was not paid at its - maturity on December 1,
The first question which arises in the ease is the determination of the relation which the receipt bears.to the policy. Is it independent of, or a part of the contract of insurance ? The view of the other members of the court on this question is stated in the first headnote; personally the writer goes further. Nothing is better-settled than that receipts generally are subject to explanation or denial as evidence of payment, and that parol evidence is competent for this purpose. If the receipt in this case can not be considered a part of the contract, then the instruction of the judge, of which complaint is made, was correct; because no one is estopped by a receipt, for it is such a writing as is subject to be varied or explained by the party executing it. But inasmuch as the pajment of the first-premium is an essential prerequisite to the creation of a contract of insurance, and the defendant admits in its answer that the contract was entered into and executed as alleged by the plaintiff, it seems to me that the receipt becomes a part of the contract. As such, it is not subject to be varied by parol; and consequently I think that the judge erred in charging the jury that they were to determine whether or not the first premium was in fact paid. Of course, the antecedent evidence upon that subject was inadmissible, but that point is not made in the first exception, and will be dealt with later. I think that where a policy of life-insurance acknowledges receipt of the premium, proof that
It is complained that the judge erred in charging the jury upon the right given the insured by the policy to reinstate himself upon certain conditions therein named; for the reason that it was irrelevant to any issue raised by the pleadings, and therefore any insructions upon the subject of reinstatement were necessarily misleading and confusing to the jury. We think this point is well taken. The issues between the parties were three: (1) Was the note given by the insured to the company in payment of the first premium? (2) Did the agents agree to assume and pay this premium? (3) Even if the note was payable to the company, was there a waiver of the forfeiture of the policy ? These were the only issues, and it was therefore immaterial whether there was any provision for reinstatement or not. The plaintiff did not insist that he had taken the proper- steps to be reinstated. Counsel for the defendant insists that the provision with regard to reinstatement of the policy is immaterial, in view of the fact that by the terms of the policy the company is continually notifying its'policy-holders to reinstate, and this, taken in connection with the sending out of
It is insisted that the court erred in permitting W. W. Eeed, a witness for the defendant, to testify, over the objection of the counsel for plaintiff: “The agents took a note from the insured. . . It was forwarded by the agents to the company. The company took that [the note] simply as an extension of time that the agents granted that party for an extension of time for the settlement of that claim.” The objection to the testimony was that the witness was incompetent to testify to transactions with the insured, who was dead, the plaintiff being insane, and that it could not prove a contract with the insured, who was dead, which would render the policy sued on void, said witness being the secretary of the company at the time of said transaction, .and now its president. IJnder section 5269 of the Civil Code of 1895, the witness, Eeed, was not incompetent, either by reason of the fact that the maker of the note was dead, or that the plaintiff in the case was insane. The witness did not purport to testify to any transaction or communication either with the deceased or with the party who was insane. Even if he had testified to a transaction or communica
We think the court erred in overruling the objection to the testimony of the witness, S. E. Jones, for the reason that he had a personal interest in the result of the suit. Civil Code, § 5269, par. 4. If the jury found in favor of the plaintiff, Jones would necessarily be liable to the insurance company- for the amount of the note, either as money collected from the deceased and not paid over to the company, or as indorser upon the note, which he took without authority of the company, instead of collecting the premium. If the jury found in favor of the defendant, Jones would not be liable, according to the undisputed testimony,' for a greater amount than the proportionate part of the premium from August 3 to December 1, even if he was liable for anything. And the testimony of Jones, to which the objection was offered, concerned his transaction with the deceased, of whom the plaintiff was the transferee or assignee, and as to whom, therefore, the plaintiff stood in the same relation as if he had been his legal representative.
Conceding that the jury had a right to find that there had been no payment of the first premium, either by the deceased or by any one in his behalf, the insurance company had the right, under the terms of the policy, to forfeit the contract upon the failure of Williams to pay his note at maturity, and waived its right by sending' the note to the bank and leaving it there and attempting to collect it, as the evidence shows, some months after the forfeiture could have been insisted upon. The company clearly waive'd its right to insist upon the forfeiture, by attempting to collect the note instead of returning or attempting to return it to the maker; because, as we held in Arnold v. Empire Insurance Co., 3 Ga. App. 685 (60 S. E. 470), an insurer can not in any case insist upon a forfeiture and at the same time retain a note taken in payment of an unpaid premium, upon the non-payment of which the forfeiture depends. This would be getting something for nothing. A waiver when once made can not be recalled, because the law does
But not only does the attempt to collect the note after the insurer might have insisted upon a forfeiture of the policy indicate a waiver of its right on the part of the insurer, but the sending of the notice as to the second premium must be taken as proof of the fact that the delinquent policy-holder was acknowledged 'by the company to be entitled to all the benefits conferred by his contract. In the present ease, although the note for the first premium had been past due since December 1, 1905, the company still recognized that Williams was insured by it, and that the past-due note had been taken in lieu of the cash, because on July 19, 1906, only fifteen days before the second premium would be due, the company mailed him the following premium notice: “Take notice. Your annual premium on policy No. 7194 will be due August 5, 1906, as fol-. lows: premium $39.70, on or before which date payment must be made to the home office of the company. If the premium is paid quarterly the amount will be $......, or if semi-annually, $...... [Signed] William W. Beed, Secretary. Note. Premiums are payable, to the company at. its office in Atlanta, and no payment of the- same shall be valid if paid to an agent or any other person whatsoever, unless such person is possessed of and turns over to the payee a receipt signed by the president, countersigned by himself, as evidence of payment to him. According to the policy contract, members must pay their premiums on or before the day on which they fall due, and in the event of their failure to do so, their policy of insurance shall be deemed forfeited and of no effect, except where otherwise expressly stipulated in the policy.” Now if the company elected to forfeit the policy, as it had the right to* do when the note was not paid on December 1 (for the forfeiture occurred immediately upon the failure of the insured to pay the note, according to the terms of the policy: Washburn v. Union Central Life Ins. Co., 143 Ala. 485 (38 So. 1011) ), then it could not consistently notify the deceased on July 19, 1906, over seven months after the note became due, that his annual premium would be due on August 5 following, and especially call the insured’s attention to the fact that his policy would be deemed forfeited if that premium was not paid on or before August 5. There was no claim, so far as
In any view of the evidence in this case, the non-payment of the first premium, if not waived, was not satisfactorily established. And inasmuch as the defendant had the burden of establishing the fact of non-payment of the premium, in order to rebut the plaintiff’s prima facie right of recovery, the evidence was not sufficient to authorize the verdict rendered in its favor. If the agents of the company, without authority, took the insured’s note, instead
Further, the note in this case was under seal, and the doctrine is well established that as to sealed instruments it can not be shown that the parties were acting merely as agents, when the agency is not disclosed. The note was payable to Langford, Jones & Co., and not to the company. Judgment reversed.