Equitable Life Assur. Soc v. Florence

• Decision Date: 12 October 1933
• Docket Number: No. 22901.,22901.
• Citation: 47 Ga.App. 711,171 S.E. 317
• Parties: EQUITABLE LIFE ASSUR. SOC. v. FLORENCE.
• Court: Georgia Court of Appeals

47 Ga.App. 711

171 S.E. 317

EQUITABLE LIFE ASSUR. SOC.

v.FLORENCE.

No. 22901.

Court of Appeals of Georgia, Division No. 1.

Oct. 12, 1933.

Syllabus by the Court.

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.

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. Joseph P. Florence died September 22, 1931. The evidence of the plaintiff showed that Joseph P. Florence was agent of the Standard Oil Company, at Wrens, from 1914 to 1916, and that at that time the company was about to. take the agency away from him when J. P. Florence Sr., agreed with it that he would become responsible for the keeping of the books and for all the financial transactions, but would not agree to personally handle the products in the event they would retain Joseph P. Florence in their employ. Written agreements executed in 1929 and 1930 were introduced showing the appointment and acceptance of J. P. Florence, the father, as agent of the Standard Oil Company, at Wrens, Ga. Joseph P. Florence continued from 1914 until the time of his death in 1931 to be in active charge of the company's affairs, in selling, handling, and accounting for sales, and was consulted by the company in Atlanta, obeyed their instructions, received their checks, indorsed, and got the money on them. J. P. Florence, Sr., did not get the money, but assumed the responsibility for the benefit of his son. There was evidence showing that the company had knowledge of and accepted the fact that Joseph P. Florence should be in active control of their station at Wrens, Ga. The incontestable clause in the policy was as follows: "This contract shall be incontestible after one year from its date of issue, except for non-payment of premiums or violations of the conditions of the policy relating to military or naval service in time of war."

1. One of the main issues in this case is whether or not Joseph P. Florence was an employee of the Standard Oil Company, the company insisting that, by the written contracts introduced in evidence for the years 1929 and 1930, J. P. Florence, the father, was the agent and not Joseph P. Florence, the son. Evidence on behalf of the plaintiff tending to show the actual conduct of Joseph P. Florence during the period of years from 1914 up to the time of his death, in his relation to and in the handling of the affairs of the Standard Oil Company at Wrens, Ga., was objected to by the defendant on the ground that all conversations and conduct of Joseph P. Florence became merged into the written contracts entered into between J. P. Florence, Sr., and the Standard Oil Company. Such evidence might be inadmissible in a proceeding between J. P. Florence, Sr., and the Standard Oil Company, but not objectionable as showing an agreement or course of conduct as between the Standard Oil Company and Joseph P. Florence. Such evidence does not attempt to contradict or vary the valid written...