Bankers Health & Life Ins. Co. v. Plumer
| Decision Date | 16 July 1942 |
| Docket Number | 29436. |
| Citation | 21 S.E.2d 515,67 Ga.App. 720 |
| Court | Georgia Court of Appeals |
| Parties | BANKERS HEALTH & LIFE INS. CO. v. PLUMER. |
Rehearing Denied July 28, 1942.
Syllabus by the Court.
Abe Plumer brought suit against Bankers Health & Life Insurance Company for the recovery of premiums with interest and damages. He alleged that the company had breached its contract of insurance with him by refusing to issue to him the free policy as provided for in the contract, and because the company had illegally and fraudulently lapsed and repudiated the contract without the plaintiff's knowledge or consent. The defendant demurred generally to the petition. This demurrer was sustained and the petition dismissed. On exception to that judgment this court held that the petition alleged a cause of action for the recovery of all premiums paid, with interest, on account of the improper lapsing of the policy and repudiation thereof by the defendant, and that the court had erred in sustaining the general demurrer. Plumer v. Bankers Health & Life Ins. Co., 62 Ga.App. 352 8 S.E.2d 97. For a more detailed statement of the allegations of the petition see that decision.
The defendant admitted the issuance of the policy, but denied the other allegations of the petition. For further answer the defendant alleged that on April 29, 1933, the policy which it had issued to the plaintiff on November 15, 1926, being policy No. 235249, lapsed for nonpayment of premiums, that all rights of the plaintiff ceased because of their nonpayment; that since April 29, 1933, no premiums whatever have been paid on policy No. 235249, and all rights of the plaintiff thereunder ceased; that on September 5, 1933, the plaintiff applied to the defendant for another policy; that policy No. 861183 was issued and delivered to and accepted by the plaintiff and all premiums paid by the plaintiff since September 5, 1933, have been paid on and applied to the latter policy; that policy No. 861183 lapsed for nonpayment of premiums on January 18, 1937, the date of the last premium paid thereon having been November 30, 1936; that the plaintiff has no rights or claim against the defendant under policy No. 861183; that the provision of policy No. 235249 with reference to the free policy, as fully set out in the petition, is a true copy of the provision which appears in that policy; that this provision provides that after premiums on the policy have been fully paid for ten years, on written application the company will issue a free policy in accordance with the tables used by the company; that the premiums on such policy were not paid for a period of ten years and no written application was ever made for the free policy; that if an application had been made in accordance with the provisions of the policy, and if premiums had been paid for a period of ten years, then the free policy to which the plaintiff would have been entitled was the amount of paid-up insurance the then reserve under the policy would have purchased; that if premiums had been paid for ten years under the policy the reserve at the end of the ten-year period would have been $49, which would have purchased a paid-up policy for $91, but that the premiums not having been paid and the policy having lapsed the plaintiff is not entitled to any amount whatever under the policy.
By an amendment the plaintiff alleged that in April, 1933, the defendant's agent in Elberton, Georgia, illegally and fraudulently attempted to lapse the policy for nonpayment of premiums when he continued to collect all premiums due on the policy, and that such agent illegally and fraudulently issued or caused to be issued a policy covering the plaintiff in lieu of the policy, a copy of which is attached to the petition, and while continuing in behalf of the defendant to collect the premiums on the original policy such agent illegally and fraudulently for the defendant credited the premiums so collected on the policy which had been illegally and fraudulently issued instead of on the policy which is the subject of this suit; that from the time the policy was issued in 1926 until after it matured in 1936 the plaintiff paid all premiums due thereon and the policy never lapsed, and that the acts of the defendant were illegal and fraudulent and were a fraudulent scheme to deprive the plaintiff of the benefits of his contract, that sometime in November or December, 1936, F. L. Sanders, an agent of the defendant, was notified by the plaintiff that the policy which is the subject of this suit had matured and requested the agent to obtain for him the necessary blanks on which to make application for the free policy as provided therein that this agent informed the plaintiff that he would send in the plaintiff's policy books and papers and obtain the free policy for him, whereupon the plaintiff turned over to this agent his policy, receipt books, and all other papers that he had in connection therewith, that he was informed by Sanders that the papers were sent to the company, that the plaintiff continued to pay the premiums on the policy to Sanders, pending the issuance and delivery to him of the free policy; that not receiving the free policy he talked with C. C. Tomlin, another of the defendant's agents in regard thereto, and was assured by this agent that his free policy would be delivered to him, that later Tomlin reported to the plaintiff that his policy lapsed in 1933, and that therefore his policy had not matured, and he was not entitled to the free policy, that on May 26, Tomlin as agent of the defendant wrote the plaintiff that he would be in Elberton in the near future and would come to see him and see "if we can't get this matter straightened out"; that the defendant never delivered to the plaintiff any other policy in lieu of the one, a copy of which is attached to the petition, and if any other policy was ever issued by the defendant it was due to the illegal and fraudulent acts of its agent, that as soon as a receipt book was filled up it was also taken up by the defendant's agents, and the plaintiff never had at any time any other than the premium receipt book in actual use at the time; that the plaintiff is an ignorant and illiterate colored person, and while he is able to read to some extent he is unable to understand the meaning of entries made on documents and papers, and any entries made by the defendant's agents on any of the plaintiff's papers in connection with the policy in question, which entries are contrary to the plaintiff's allegations in his petition, were illegally and fraudulently made and designed to deceive and mislead the plaintiff, that the plaintiff continued to make payments on his insurance until January 1937 and such premium payments were fraudulently omitted from his receipt book by the defendant's agent, but the agent entered the last payment made by the plaintiff in the receipt book as of December 14, 1936; that the number of the policy entered on the receipt book as "B-861183" was illegally and fraudulently entered thereon when in fact the number of the plaintiff's policy was 235249, but because of the plaintiff's illiteracy and ignorance he did not notice this change and did not know that the substitution had been made, and no policy having such number was ever delivered to him or applied for by him, and the plaintiff has never had or paid premiums on any policy other than the one, copy of which is attached to the petition, and that the defendant is bound by the fraudulent acts of its agents, and the plaintiff is entitled to the relief sought in the original petition.
By another amendment, dated August 14, 1940, the plaintiff struck from the original petition the allegation that he had reached the age of fifty-three years, is in declining health and uninsurable, and that the act of the defendant in fraudulently and unlawfully lapsing and cancelling his contract of insurance has injured and damaged him in the sum of $500, and the allegation that the acts of the defendant were fraudulent and in bad faith and he was entitled to reasonable attorney's fees and 25 per cent. damages. The plaintiff in this amendment alleged that the acts of the defendant in failing and refusing to comply with the terms of its contract and deliver to him the "free policy" and in cancelling the plaintiff's first policy and lapsing it, and applying the premiums paid by him to policy No. B-861183, were all in bad faith and fraudulent, that the conduct of the defendant was in bad faith, stubborn and litigious and has caused the plaintiff unnecessary trouble and expense in having to engage counsel to prepare, file and prosecute this action, and the plaintiff sues for reasonable attorney's fees in terms of the law.
On the trial the plaintiff introduced evidence tending to establish the allegations of his petition as amended. The plaintiff testified as follows: ...
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