Cotton States Life Ins. Co. v. Edwards

Decision Date21 October 1884
Citation74 Ga. 220
CourtGeorgia Supreme Court

September Term, 1884.

1. The continuance of cases on account of the absence of counsel is not favored, and such absence is no cause for postponement unless in cases of necessity or misconception. Absence without leave, to attend trials of cases pending in other courts, is no ground for continuance.

( a. ) The judges of the superior courts are invested with discretion as to the continuance of cases for the term or their postponement during the term, and unless such discretion is flagrantly abused in overruling a showing for a continuance, this court will not interfere with its exercise.

2. If no objection be made to the asking of leading questions or the proving by parol of the contents of writings, without showing them to be lost or inaccessible, the admission of such evidence and the allowance of such questions will furnish no ground for a new trial. Nor will this be changed by the fact that the moving party was not represented on the trial, if its counsel voluntarily absented themselves, and were not present to raise objections.

( a. ) Whether leading questions are to be allowed is largely in the discretion of the court, and this discretion will not be controlled except in extreme cases, although the witness called may be the opposite party in the case.

( b. ) It does not appear that parol evidence was improperly admitted, so as to injure the defendant.

( c. ) What an agent does within the scope of his authority binds his principal, and this applies not only to his acts, but to all the representations made by him in that business. A corporation can act only by its agent, and within the line of his business if not the company itself, he is its alter ego.

3. Where a policy of insurance contained a provision that if it was terminated by the non-payment of premiums, and for no other cause, after two full years' premiums had been paid, then it should be valid for as many tenth parts of the sum insured as there should have been annual premiums paid and where the policy was thus terminated, and the secretary endorsed thereon, " This policy is valid for two-tenths of the amount insured, subject to the terms and conditions of the policy," semble that the policy had been fully executed, and the company had no further control over the actions of the insured in respect to his going into the torrid zone and other like conditions, and that his going thither thereafter furnished no ground for defence.

( a. ) If, after full knowledge of the fact that the insured had gone to the torrid zone in violation of one of the conditions of his policy, and that there was a discrepancy in regard to his age, it so appearing from the application for the policy and the proofs of death, the insuring company expressed satisfaction with the proofs, and promised payments, this amounted to a waiver of the forfeiture claimed to result from a failure to comply with such conditions.

( b. ) An error in stating the age of the deceased in the proof of the death is explainable.

4. In §2850 of the Code, which provides that where a loss occurs under a policy, and the company refuses to pay it within sixty days after demand by the holder of such policy, they shall be liable to pay him, in addition to the loss, not more than twenty-five per cent on their liability for such loss and also all reasonable attorney's fees for the prosecution of the suit to recover the same, unless it shall be made to appear to the jury trying the case that such refusal to pay was not in bad faith; the terms " bad faith" are not the equivalent of actual fraud, but they mean any frivolous or unfounded refusal in law or in fact to comply with the requisition of the policy-holder to pay according to the terms of his contract and the conditions imposed by statute.

5. Where a motion for new trial is made, the respondent is entitled to show cause against its grant; and in this case the cause shown made it evident that no other verdict could have been rendered than that which it was sought to set aside, and a new trial was properly refused.

Continuance. Practice in Superior Court. Attorney and Client. Discretion. Witness. Evidence. Principal and Agent. Insurance. Contracts. Waiver. Words and Phrases. New Trial. Before Judge SIMMONS. Bibb Superior Court. October Adjourned Term, 1883.

Mrs Emma C. Edwards, administratrix of her husband, H. S. Edwards, deceased, sued the Cotton States Life Insurance Company on a policy of insurance on the life of deceased for $5,000.00. Plaintiff also alleged a demand and refusal to pay in sixty days in bad faith, and claimed damages and attorney's fees.

The defendant pleaded. (1.) The general issue. (2.) That the assured represented his age to be less than the proofs of death showed, whereby he paid a less premium. (3.) The proof of death showed the assured had violated the clause in the policy inhibiting him from passing into the torrid and frigid zones, by passing into the torrid zone, and going from San Francisco to Australia. (4.) That if defendant owed anything on the policy, it was not $5,000, nor any of the sums demanded, but only $789.46, the insured having made but two payments of premiums— one when the policy was issued, and the next, one year thereafter, neither of which was a full year's payment, the full year's premium being $198.15, and the payment being $132.15, leaving $66.00, with interest thereon, due each of the two years; and that he paid nothing from then till his death, nearly nine years thereafter. Bad faith was denied.

It is unnecessary to detail the evidence, further than to state that the policy and two premium notes were introduced, and plaintiff testified that she made the proofs of death and demanded payment; that Obear, the secretary of defendant, both verbally and in writing, said that the proofs were all right, and admitted the claim, but said that the company could not pay, because of a notice which had been served on him by certain attorneys not to pay it; that after obtaining letters of administration, she demanded payment, but it had not been mad. There was also evidence as to the value of attorney's fees. The other material facts are stated in the decision.

The jury found for the plaintiff $789.40, with interest, and $100.00 attorney's fees. Defendant moved for a new trial, on the following among other grounds:

(1.) Because the case was advanced to trial, and tried in the absence of both counsel for defendant, one being in attendance on the United States Court in Savannah, and the other in attendance on the Supreme Court. [As to the circumstances on which this ground was based, the presiding judge did not certify the statements of the motion to be correct, but added the following certificate:

" My recollection of the facts is as follows: The case was set for trial, under our rules, for Thursday or Friday. On Thursday morning, I received a telegram, announcing the sudden death of my brother. I left immediately for Americus, and remained there Thursday and Friday. On Friday night, I returned, and Saturday morning the bar met for the purpose of setting cases, in accordance with a notice given by the clerk the previous day. In accordance with our rules, this case, not having been disposed of the day it was set, was with others set on that day, the first called for setting. It was called and set under the rules. I do not think that either Mr. Lanier or Mr. Anderson were present. Neither had applied for leave of absence, nor had it been granted to either one. The cases were published in the Atlanta and Macon papers as having been set for trial on Tuesday. On that morning, I received a letter from Mr. Lanier informing me of his absence, and asking me to protect him as far as I could in another case set for that day, but saying nothing of the Edwards case. The case was called for trial in its order, when the plaintiff announced ready. I read her counsel Colonel Lanier's letter, and he seemed willing to postpone the case, if his client would consent. She declined to consent, and no legal showing for a contnuance being made, I ordered the case to trial, holding that counsel's voluntary absence in attendance in the Supreme Court, in a case not from this circuit, was not a legal showing. If any other rule should prevail, the judges of the superior courts would, in many counties, be powerless to transact the business of the circuit. The Supreme Court is in session most of the time, and eminent counsel could be employed in every circuit, and would be in the Supreme Court nearly all the time. It is due to myself to say that when counsel have heretofore made application in time to attend the Supreme Court, I have never refused it. I can then generally arrange the business so as to excuse them." ]

(2), (3.) Because the verdict was contrary to evidence, the weight of evidence and the principles of equity.

(4.) Because there was no evidence to sustain the verdict for attorney's fees.

(5.) Because the court permitted the plaintiff's counsel to ask the plaintiff, " Have you got a letter in your possession in which he (meaning George S. Obear) admits the receipt of the proof?" and in allowing her to answer, " I thought I had one with me, where he said they were satisfactory. He says he thinks they are all right, but I thought I had one, and I thought I had it with me, where he said all seems right, but I had one where he says it is satisfactory; I thought I had it with me; " — this testimony being illegal for two reasons: one, because the letter should have been produced, and the other, because George S. Obear was not the company, and there was no evidence showing that he was authorized to decide for it.


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  • Ideal Mut. Ins. Co. v. Lucas
    • United States
    • U.S. District Court — Northern District of Georgia
    • September 27, 1983
    ...of the condition. See Sargent v. Allstate Insurance Co., 165 Ga.App. 863, 865, 303 S.E.2d 43 (1983); Cotton States Life Insurance Co. v. Edwards, 74 Ga. 220, 230 (1885). While there is no talismanic test to determine whether a provision in an insurance contract is a condition or exclusion, ......

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