National Life & Acc. Ins. Co. v. Parker
| Decision Date | 17 March 1942 |
| Docket Number | 29220. |
| Citation | 19 S.E.2d 409,67 Ga.App. 1 |
| Court | Georgia Court of Appeals |
| Parties | NATIONAL LIFE & ACCIDENT INS. CO., Inc., v. PARKER. |
Syllabus by the Court.
If beneficiary, under a claim for double indemnity under life policy, which insurer disputed, accepted sum offered by insurer and executed a paper releasing insurer from liability for any other claim under policy in consideration of such payment, beneficiary would be bound thereby as for an "accord and satisfaction".
Act of insurer's agent in stating to beneficiary that life policy had been lapsed for one week, if established, did not amount to "actionable fraud", inasmuch as fact of lapse or nonlapse was readily ascertainable by beneficiary and no fiduciary relationship existed between her and agent as regards validity of settlement and accord.
Whether beneficiary was entitled to receive amount of double indemnity or only paid up value of life policy involved a "question of law", and the declared opinion of insurer's agent in that respect would not constitute "actionable fraud", as regards validity of settlement and accord.
In action on life policy, an allegation in petition that if beneficiary signed any paper releasing insurer from liability under policy she did not know it, and that she could read and understand writing only with difficulty when in a normal condition, without any allegation that she was prevented from knowing contents of paper she signed by any artifice of insurer's agent, or that, though with difficulty, she could not have read any paper she might have signed and have understood it, failed to allege facts sufficient to authorize disregarding of release.
Where it appeared that last date when a premium more than four weeks in arrears was accepted by insurer's agent was nearly a year before death of insured, subsequent payments in the time required by life policy overcame any alleged custom on part of insurer to accept premiums after they were due under the policy, and hence, there was no "waiver" of provision of policy causing policy to lapse because of nonpayment of premiums within time specified.
The payment of a premium on a life policy is a "condition subsequent" unless by policy made a condition precedent.
Generally where a forfeiture provision is contained in life policy, the punctual payment of premiums, as and when due, is of the essence of the contract, and a failure to make such payment in strict compliance with terms of policy, in absence of a waiver expressly made, or arising by reasonable implication results in a forfeiture of the policy.
A petition, which alleged that plaintiff was beneficiary under policy on life of her son, which policy provided for double indemnity in event of accidental death, and that son died from accidental drowning while policy was in force, and which gave as reason for failure to attach copy of policy to petition, the fact that insurer had possession of policy and had failed to deliver it to plaintiff on demand, was sufficient to set forth a cause of action.
In action on life policy, where insurer's agent was not one of those designated by life policy as authorized to extend time of payment of premium, and policy expressly provided that no agent had power to waive any forfeiture, insurer would not be bound by act of agent in accepting premium after time provided by policy, in absence of show ing that insurer knew that premiums had been accepted after time specified in policy or by some act had ratified acceptance of belated premium.
Evidence was insufficient to present question for jury as to whether insurer was precluded from claiming a forfeiture of life policy for nonpayment of premiums, by reason that insurer's agent who was accustomed to collect the premiums failed to call for premiums in time to prevent a lapse of policy, although requested to do so, in view of positive testimony of two agents of insurer that they called for premiums.
In action on life policy, where under the evidence policy had lapsed for nonpayment of premiums in time specified in policy, and no waiver or estoppel against insurer claiming a forfeiture of policy was shown, beneficiary was not entitled to recover.
A charge informing jury that as admitted by beneficiary, life policy sued on had lapsed according to its terms at time of insured's death, and that both parties had agreed by a written stipulation that "on the face of it" the policy had lapsed, was not erroneous, on ground that it had effect of unduly qualifying beneficiary's admissions by stipulation.
A charge which stated that beneficiary contended that she had no idea that accepting premiums on life policy after they were due and establishing thereby a course of dealing would still keep the policy in life, and that beneficiary contended there was a course of dealing between insurer, through its agent, and her, to accept premiums on policy after they were past due and induced her to believe that in future policy would still be in life, was erroneous, on ground that it was misleading.
A charge that if jury should find that there was a custom established between insurer and beneficiary under policy on life of her stepson whereby company would accept payments for premiums on policy more than four weeks in arrears, and that within a reasonable time after premiums were payable beneficiary offered to pay them, then beneficiary could recover on policy, was erroneous, as submitting an issue not made by the evidence.
In action on life policy, where it appeared that insurer paid beneficiary paid-up value of policy and obtained a full release, a charge that if settlement was made with one party for an amount which other party conceded to be due in any sense, then a full settlement release was binding only as to amount paid and conceded to be due and did not have effect of settling any other claim beyond what was conceded to be due, was error, as not warranted by evidence.
In action on life policy, where insurer contended that it had paid beneficiary paid-up value of policy and had obtained a full release, a charge that the payment and release would not constitute an accord and satisfaction was error, under the evidence.
A charge that if jury should find that insurer, through its agent, through fraudulent misrepresentation, induced beneficiary to execute a full release under life policy sued on upon being paid the paid-up value of policy, then jury should regard release as void, was unauthorized under evidence.
A charge that insurer contended that beneficiary knew and understood all the facts when signing a full release after having been paid the paid-up value of life policy sued on, and that beneficiary contended that she settled claim and gave receipt on theory that policy had lapsed because she did not know that she could establish a waiver of forfeiture provision of policy by proof of a course of dealing, and that jury was to determine where truth of the case lies, was erroneous, as informing jury that beneficiary could avoid the release because of her ignorance of the law.
In action on life policy, where beneficiary sought to show that acceptance of premiums by insurer's agent after period provided by policy constituted a waiver of forfeiture provision of policy, requested charge that beneficiary would not be entitled to recover, even if custom of accepting premiums after time provided in policy were established, if jury should find that such custom had been abandoned, was improperly refused. In action on life policy, where beneficiary sought to show that acceptance of premium by insurer's agent after time provided by policy constituted a waiver of forfeiture provision of policy, requested charge that beneficiary would not be entitled to recover, even if custom of accepting premiums after time provided in policy were established, if jury should find that beneficiary had been notified for a reasonable length of time by agent that policy would lapse if premium became more than four weeks in arrears and thereafter beneficiary failed to pay premium within four weeks' period and insured died thereafter, was improperly refused.
In action on life policy, where evidence showed that insurer had paid beneficiary paid-up value of policy and obtained a full release, requested charge that if beneficiary executed a release in full of all claims due under policy, beneficiary would be precluded from claiming face value or double indemnity amount of policy was due to her, was improperly refused.
Generally, a stepchild does not, as such, have an "insurable interest" in life of stepparent, or vice versa, however, under particular circumstances, such as dependency, expectation of aid or benefit when needed, etc., the stepchild may have an insurable interest in life of stepparent or vice versa.
Generally, reasonable expectation of pecuniary advantage through continued life of another person and consequent loss by reason of his death creates an "insurable interest" in life of such person.
In action on life policy, where a finding was demanded as a matter of law under the evidence that plaintiff had an insurable interest in life of insured, who was her stepson, failure to charge jury on law of insurable interest was not prejudicial error.
1. The court erred in not sustaining the special grounds of demurrer as dealt with in the first division of the opinion.
2. The petition as amended, after eliminating the allegations which should have been stricken under the foregoing ruling, nevertheless set forth a cause of action for recovery of double indemnity under the pleaded provisions of the policy referred to in the petition.
3. Under the evidence and the provisions of the policy sued on the policy had lapsed for nonpayment of premiums in...
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