Boykin v. Franklin Life Ins. Co.

• Decision Date: 22 June 1914
• Docket Number: 5427.
• Citation: 82 S.E. 60,14 Ga.App. 666
• Parties: BOYKIN v. FRANKLIN LIFE INS. CO.
• Court: Georgia Court of Appeals

82 S.E. 60

14 Ga.App. 666

BOYKIN v. FRANKLIN LIFE INS. CO.

No. 5427.

Court of Appeals of Georgia

June 22, 1914

Syllabus by the Court.

"It being undisputed in the evidence that the insured retained in his possession the policy of insurance (with a receipt acknowledging the payment of the first premium, attached thereto), and made no effort to return the contract of insurance to the insurer, merely expressing dissatisfaction therewith and inability to pay the note given for the premium, a verdict for the defendant, in a suit brought by the insurance company upon a note given for a premium upon the policy, was contrary to law. The insured cannot defeat payment of the premium upon a policy of insurance, issued at his instance, while he still retains the contract, the very issuance and delivery of which depend upon a cross-obligation that the premiums will be paid." Franklin Life Ins Co. v. Boykin, 10 Ga.App. 345, 73 S.E. 545. And this is true notwithstanding the insured sought to countermand the application for insurance before the policy was received where he did finally receive it and retained it, and still retains it, even though he alleges that his retention of it was under protest, especially where the evidence further discloses that he made a partial payment on the note given for the first premium after the note became due, and that some five months after he had received the policy he made an effort to borrow money thereon in order to pay off and discharge the note.

Where one signed an application for insurance without reading it though he was able and had ample opportunity to read it, and the policy delivered to him was exactly as described in the application, he cannot successfully defend an action brought on his note given for the premium thereon by setting up that the agent who procured his signature to the application made fraudulent representations as to its contents and thereby induced him to sign an application differing from the one he intended to sign. Shedden v. Heard, 110 Ga. 461, 35 S.E. 707.

The confidential relations between contracting parties which will authorize one of them to neglect the ordinary caution of a prudent man and to rely entirely upon the representations of the other, arise only "where one party is so situated as to exercise a controlling influence over the will, conduct and interest of another, or where, from similar relation of mutual confidence, the law...