Independent Life & Acc. Ins. Co. v. Pantone
| Decision Date | 18 October 1949 |
| Docket Number | 32712. |
| Court | Georgia Court of Appeals |
| Parties | INDEPENDENT LIFE & ACCIDENT INS. CO. v. PANTONE. |
Rehearing Denied Nov. 9, 1949.
Syllabus by the Court.
1. In contradictory pleadings, the version most unfavorable to the pleader must be taken, as a pleading must be construed most strongly against the pleader.
2. The acts of the agent in the instant case failed to amount to a reinstatement of the lapsed policy, and the act of the company in retaining the premiums without knowledge of the facts did not amount to a ratification of the unauthorized act of the agent.
3. Where the policy provides that the extent of the company's liability will only be the refund of premiums paid after the lapse of the policy unless the insured is alive and in good health, and where it appears that the insured was dead at the time the lapsed policy was paid up which fact was unknown to the company or any of its agents the extent of the company's liability is the refund of the premiums thus paid.
Mrs Jetter Pantone filed her petition against the Independent Life and Accident Insurance Company in which she prayed judgment against the insurer for double indemnity, 25% penalty and attorney fees on a policy issued by that company on the life of one Guy Tedders in which she was named beneficiary. The petition as twice amended alleged that the insured died on December 20, 1948, at 5:00 a. m. in an accidental fire in Folkston, Georgia and that the plaintiff did not learn of his death until 10 days later, that demand was made upon the defendant insurance company on January 17, 1949, for payment according to the terms of the policy, at which time it refused to pay her any amount except the return of her premiums in the sum of $12.80.
The allegations relating to the payment of premiums are as follows: that it was customary for an agent to call at the plaintiff's house to collect premiums but that the agent was sick, that on December 20, 1948, between noon and 1:00 p. m. she called at the office of the defendant's agent to pay her premiums but was informed they had no way of telling how much she owed, and she left $4.00 with the agent 'not knowing whether she was one week or six weeks behind'; that this payment was accepted, that the agent then came to her home and placed the credits in her receipt book that the next day he came back and asked her to pay up to January 3, 1949, and that she did so; that these payments were accepted by the agent and constituted a waiver of any requirements under the policy as to reinstatement thereof, and that the defendant company accepted the same, thereby waiving the provisions of the policy in reference to non-payment of premiums.
The policy provisions are set out in Exhibits A and C, the pertinent parts reading as follows:
(Italics ours.)
The defendant insurance company renewed its general demurrer to the petition an amended. This demurrer was overruled by the trial court, and the defendant brings error.
Leonard Farkas, Albany, Walter H. Burt, Albany, for plaintiff in error.
James W. Smith, Albany, for defendant in error.
TOWNSEND, Judge (after stating the foregoing facts.)
The original petition, which set forth the contract of insurance, the death, the demand and the failure to pay, was subject to the demurrers filed against it that there was no allegation the policy was in full force and effect at the time of the insured's death, and also that the terms of the policy were not sufficiently set forth. In her first amendment, the plaintiff further alleged that about two weeks before December 20, 1948, she called at the office and asked to have an agent sent out to collect her premiums, that on December 20 she again went to the office and this time left the sum of $4.00, 'not knowing whether she was one week or six weeks behind but believing she was leaving enough so that it would be sufficient to pay it up'; that an agent then called at her home and placed the credits in her receipt book, and that the next day he came back and asked her to pay up to January 3rd, 1949, and that she did so. In her second amendment the plaintiff stated that Guy Tedders died at 5:00 a. m. on December 20, 1948. By Exhibit 'C' attached to and made a part of the amendment she set out further provisions f the policy of insurance, as quoted in the statement of facts, and by Exhibit 'B' she set out a copy of the premium receipt book, with the credit entries, showing that the weekly premium payments were in the amount of $.08, and that on December 20, 1948, the agent D. W. Nash had credited her for 6 such payments, for the weeks of September 20, 1948, through January 3, 1949, and that he had written the word 'Revival' after the first of these credit entries. This amendment contains the further allegation that 'all payments of premiums were made when the same became due and payable but the defendant's agent, D. W. Nash, waited until December 20, 1948, before inserting on the premium receipt book the dates that premiums were paid * * * said payments were made when same became due and payable and at the time of the death of the insured, all of the premiums had been paid and the said policy had not lapsed.' The plaintiff did not strike any of the allegations of her original petition or amendment.
There results, therefore, a conflict in the pleadings which must be...
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