171 S.E. 317 (Ga.App. 1933), 22901, Equitable Life Assur. Soc. v. Florence

Docket Nº:22901.
Citation:171 S.E. 317, 47 Ga.App. 711
Party Name:EQUITABLE LIFE ASSUR. SOC. v. FLORENCE.
Attorney:Colquitt, Parker, Troutman & Arkwright, of Atlanta, and R. N. Hardeman, Jr., of Louisville, for plaintiff in error. Phillips & Abbot, of Louisville, for defendant in error.
Judge Panel:BROYLES, C.J., and MacINTYRE, J., concur.
Case Date:October 12, 1933
Court:Court of Appeals of Georgia

Page 317

171 S.E. 317 (Ga.App. 1933)

47 Ga.App. 711

EQUITABLE LIFE ASSUR. SOC.

v.

FLORENCE.

No. 22901.

Court of Appeals of Georgia, First Division

October 12, 1933

Syllabus by the Court.

In suit on group policy, evidence of insured's actual conduct in relation to holder of master policy held admissible on issue whether insured was employee as against contention that written contracts between insured's father and employer were controlling.

In suit on group policy, proof that employer had collected premiums due thereon from deceased established prima facie case, whereupon burden was on insurer to establish its affirmative defense.

Policy issued to deceased by group insurer in named amount, according to class and character of his employment, was prima facie evidence as to its correctness in naming amount and class of employment.

Group insurer is bound by terms of application and policy issued thereunder, in absence of fraud, accident, or mistake.

In group insurance, where master policy is issued to employer, notice of employer-employee relationship between insured and employer at time of issuance of policy is conclusive, in absence of fraud, accident, or mistake.

Incontestable clause precluded group insurer from questioning that employer-employee relationship existed between insured and holder of master policy at time of issuance of policy.

1. Evidence showing the relationship, conduct, and course of dealing, between A and B is admissible, although it may tend to contradict a written agreement between B and C. The court did not err in permitting the witnesses to testify as to the relation, conduct, and course of dealing of the deceased with his alleged employer.

2. Upon its being shown that the employer had, according to the provisions of the insurance policy sued on, collected from the deceased the premiums due thereon, a prima facie case was established, and the burden was then on the defendant company to establish its affirmative defense, and the court did not err in so instructing the jury.

3. The company having issued the policy to the deceased in a named amount, according to the class and character of his employment, the policy itself was prima facie evidence as to its correctness in naming the amount and class of employment. If the evidence showed a continuation in the same relationship at the time of death, it was not necessary for the court to charge thereon unless requested.

4. In the absence of fraud or proof of accident or mistake, the company is bound by the terms of the application and the policy issued thereunder. In group insurance, where the "master policy" is issued to the employer, notice of the relationship of employer and employee at the time of the issuance of the policy is conclusive, in the absence of fraud, accident, or mistake.

5. An incontestable clause in a policy of insurance is not a meaningless provision. Its purpose is to annul all warranties and conditions that might defeat the right of the assured after the lapse of the stipulated time. It is of no significance unless the existence of grounds of contest in the terms of the contract or in extrinsic facts be assumed. In a policy based on the continuance of the relation of employer and employee, such relationship at the time of the issuance of the policy is a provision coming under the terms of the incontestable clause. Its existence at the time of death is a matter independent of such a clause.

Error from City Court of Louisville; M. C. Barwick, Judge.

Suit by Mrs. Irene Y. Florence against the Equitable Life Assurance Society, etc. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Affirmed.

Page 318

Colquitt, Parker, Troutman & Arkwright, of Atlanta, and R. N. Hardeman, Jr., of Louisville, for plaintiff in error.

Phillips & Abbot, of Louisville, for defendant in error.

GUERRY, Judge.

Mrs. Irene Florence brought suit against the Equitable Assurance Society upon a policy of insurance issued upon the life of her husband, Joseph P. Florence. This was what is known as group insurance, the "master policy" being issued to the Standard Oil Company, and the individual policies based thereon being issued to the employees of that company. The insurance company admitted the execution and delivery of the policy sued on, but liability was denied by it upon the ground that in delivering the policy to Joseph P. Florence it acted upon the assumption and belief that he was an employee of the Standard Oil Company, when as a matter of fact he was not an employee of the Standard Oil Company, and that it (the insurance company) thought and believed that the policy was being issued to James P. Florence, who was the father of Joseph P. Florence and who was an employee of the Standard Oil Company, instead of Joseph P. Florence; that J. P. Florence and Joseph P. Florence had the same name and were father and son; that J. P. Florence, Sr., was the employee of the Standard Oil Company, and the policy was issued through mistake. They claimed also that the premiums thereon were paid by J. P. Florence, Sr. Mrs. Florence contended that her husband was an employee of the Standard Oil Company, and entitled to participate in the group insurance policy, that the certificate was properly issued to him, and that he paid the premiums. The verdict was in favor of Mrs. Florence; and, the insurance company's motion for a new trial having been overruled, it excepted.

The policy was issued May 1, 1930, and the death occurred in September, 1931. There were no allegations of fraud. The evidence disclosed the fact that the application for this insurance was made to the Standard Oil Company. The application set out the fact that Joseph P. Florence, 40 years old, was the agent of the Standard Oil Company, at Wrens, Ga., and named Irene Florence, his wife, as beneficiary. The Standard Oil Company, acting on the application, had the Equitable Life Assurance Society issue the policy to J. P. Florence, dated May 1, 1930. J. P. Florence, Sr., was 66 years of age....

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