Continental Cas. Co. v. Union Camp Corp.

• Decision Date: 04 January 1973
• Docket Number: No. 27391,27391
• Citation: 195 S.E.2d 417,230 Ga. 8
• Parties: CONTINENTAL CASUALTY COMPANY v. UNION CAMP CORPORATION et al.
• Court: Georgia Supreme Court

Page 417

195 S.E.2d 417

230 Ga. 8

CONTINENTAL CASUALTY COMPANY v. UNION CAMP CORPORATION et al.

No. 27391.

Supreme Court of Georgia.

Jan. 4, 1973.

Syllabus by the Court

1. The evidence authorized the verdict for the plaintiff. Consequently, it did not demand a verdict for the defendant and the trial court did not err in overruling the motion for a directed verdict made by the defendant, nor in thereafter overruling defendant's motion for a judgment notwithstanding the verdict for the plaintiff.

2. Where the trial court refuses to instruct the jury in accordance with a timely submitted written request, in order to secure a review of that action on appeal it is unnecessary for the party to state grounds of objection to such refusal at the conclusion of the charge. United States Security Warehouse v. Tasty Sandwich Co., 115 Ga.App. 764(1), 156 S.E.2d 392 and other cases in the Court of Appeals holding contrary to this rule, disapproved.

3. The trial court did not err in refusing to charge the jury in accordance with the defendant's written request that if the defendant accepted late premium payments as a mere indulgence to the plaintiff and without any consideration therefor by the plaintiff this would not affect the defendant's right to enforce the contract according to its terms, since the principles embodied in the request were substantially covered in the general charge.

4. The remaining grounds of enumerated error are all without merit.

Adams, Adams, Brennan & Gradner, A. Pratt Adams, Jr., Savannah, for appellant.

Bouhan, Williams & Levy, Robert M. Williams, Walter C. Hartridge, II, Savannah, for appellees.

HAWES, Justice.

The defendant, Continental Casualty Company, appeals from a judgment entered on a jury verdict ordering it to specifically perform three designated group accident and sickness insurance policies which had been issued by it to the plaintiff, Union Camp Corporation, covering Union Camp's employees and their dependents at its Savannah, Georgia, plant. The issues raised on this appeal relate to whether the verdict and judgment in favor of the plaintiff were authorized by the evidence and to whether it was error for the trial court to refuse certain written requests to charge timely filed by the defendant.

The insurance policies in question were issued in renewal of policies previously issued providing the same coverage. The policies here involved covered a period from October 1, 1968 through October 1, 1971. The policies insured some 3,000 employees at plaintiff's Savannah facility and the dependents of those employees against losses resulting on account of accident or sickness as set forth in the policies. Each of the policies provided that the premium due thereon would be payable in advance on the first day of each month, or within a grace period of 31 days thereafter. Each policy contained a provision that, 'If any premium is not paid within the days of grace, this policy shall thereupon be automatically discontinued, but the employer shall, nevertheless, be liable to the company for the payment of all premiums than unpaid, together with the premium for the days of grace.'

It appears that under the provisions of the policies in question Union Camp would take a census of its employees covered by the policies of insurance on the first day of each month and apply that census to the premium rates according to the number of employees covered as individuals only, the number of employees covered with one dependent, and the number of employees covered with more than one dependent. The monthly premium would thus be computed on the basis of that census and a voucher prepared and approved in Savannah. It was the practice of the employees in the Savannah office of Union Camp to prepare such voucher on the first day of each month or within a day or two thereafter and to forward the same to the office of Union Camp at Wayne, New Jersey, from whence a check in the payment of the premiums would be routinely issued and forwarded to the defendant Continental Casualty Company in Chicago. The evidence shows that with the exception of four months out of a period of 81 months the premium was always paid within the 31-day grace period, but never on the nominal due date. For the months of August, 1968, February, March and April of 1970, the premiums due on the first day of each such month were accepted 11 days, 31 days, 3 days and 17 days beyond the grace period. The premium due on July 1, 1970 was not mailed from the office of Union Camp in Wayne, New Jersey until either August 3 or August 4, 1970, and did not reach the defendant in Chicago until August 6, 1970. On August 4, 1970, at 5:13 P.M., Savannah time, Continental wired Union Camp at Savannah advising that the three described policies 'are automatically discontinued by Continental Casualty Co. effec(tive) 12:01 A.M., Standard time, 8-1-70 at the policy holder's place of business. The above policies are being discontinued under the provisions outlined in Section II of each policy-for nonpayment of premium within the grace period.'

1. The question thus presented to the trial court for decision and urged before this court on appeal is whether under all the facts appearing the defendant insurance company, before insisting upon strict adherence by Union Camp to the provisions of the policies of insurance respecting the payment of premiums should have given Union Camp reasonable notice of its intention to rely on the exact terms of the contract, and whether under such facts there had been such a departure from the terms of the contract as to constitute a quasi new agreement in accordance with the principles set forth in Code § 20-116. Appellant, Continental Casualty Company, contends that the evidence shows at most a mere inadvertent omission on the part of Union Camp to mail the premiums within the time fixed by the policies of insurance, a mere indulgence on four prior occasions by Continental of Union Camp and, therefore, no intended (deliberate) mutual departure from the terms of the contract respecting the time of payment of the premiums. While we recognize that a departure from the terms of a contract which is relied upon by one of the parties so as to require a notice of intention to insist on strict compliance with the original contract terms under the provisions of Code § 20-116 must be mutual between the parties and intended, and must be such as, in law, to make practically a new agreement as to the stipulations contained in the original contract (Bearden Mercantile Co. v. Madison Oil Company, 128 Ga. 695, 704, 58 S.E. 200; Southern Feed Stores v. Sanders, 193 Ga. 884, 887, 20 S.E.2d 413; Carter v. General Finance & Thrift Corp., 96 Ga.App. 423, 425, 100 S.E.2d 99), yet, whether there has been such a mutual and intended departure so as to make practically a new agreement is generally a question for a jury to determine. Prothro v. Walker, 202 Ga. 71(1a), 42 S.E.2d 114. We also recognize the fact that the mere acceptance by an insurer on two or three occasions of monthly or periodic premium payments after their due date or beyond the grace period provided in the policy would not, standing alone, constitute a waiver of the provisions of the policy respecting the time of payment of the premium nor make for the parties a new contract in that regard upon which the insured would be entitled to rely and insist.

If the mere acceptance by Continental of four late payments was the only fact in this case, we would be constrained to sustain the contention of the appellant that the evidence demanded a finding that there had been no such new agreement and that a verdict for the defendant was demanded. However, the evidence shows that with respect to the February and March delinquencies the defendant wrote John D. Carswell Company, the broker in Savannah through whom the insurance coverage had been written, advising that while they had received copies of the reports for those months showing $95,041.43 to be due for February, and $81,476.26 to be due for March, the checks in payment of those premiums had not been received. This communication was dated April 7, 1970 and requested the broker to furnish 'copies of the front and back of the cancelled checks in question, in order for us to check further.' The broker replied on April 13, 1970 that the February and March checks in the respective amounts were forwarded from Union Camp Corporation's Wayne, New Jersey office on April 3, 1970. The employee of John D. Carswell Company who signed that communication testified that she, upon receipt of the foregoing inquiry from Continental, telephoned the employee at Union Camp who handled insurance matters to secure the necessary information before replying to Continental's inquiry. An employee of Union Camp testified that she recalled having received an inquiry from someone at John D. Carswell Company respecting a late payment. She could not be more specific as to the identity of the person at John D. Carswell Company with whom she talked nor as to the time of the conversation. However, it is clearly inferable from this evidence that the tenor of the inquiry of Continental Casualty dated April 4, 1970 was communicated to Union Camp and that the information which was communicated to Continental Casualty Company in response to their inquiry was information furnished by Union Camp.

With respect to the delinquent April payment, Continental's D. J. Vath, manager of group collections, wrote Union Camp on May 14, 1970: 'The remittance and billing on this group policy were due on the above date but have not been received in this office. If there is any reason why your billing and remittance cannot be sent right away, please complete the bottom portion of this form and return it to us today.' The reference appearing at the head of that letter is to 'Group Policy No. 01-G-7354 payment due: 04-01-70.' In reply to that inquiry, plaintiff's B. R. Kilroy, Manager, ...