McLemore v. Life Ins. Co. of Ga., 43350

• Decision Date: 30 January 1968
• Docket Number: No. 2,No. 43350,43350,2
• Citation: 159 S.E.2d 480,117 Ga.App. 155
• Parties: Jean McLEMORE v. LIFE INSURANCE COMPANY OF GEORGIA
• Court: Georgia Court of Appeals

Page 480

159 S.E.2d 480

117 Ga.App. 155

Jean McLEMORE v. LIFE INSURANCE COMPANY OF GEORGIA.

No. 43350.

Court of Appeals of Georgia, Division No. 2.

Jan. 30, 1968.

Syllabus by the Court

1. A life insurance company, by an express provision in the application for insurance, may define and limit the power of a mere soliciting agent; and one dealing with such agent cannot set up a waiver which he knew the agent had no power to make.

2. The allegations of compliance with the terms of a life insurance 'receipt' are sufficient when tested by general demurrer.

Jean McLemore brought this action in the State Court of Bibb County against the Life Insurance Company of Georgia seeking to recover under a life insurance policy in which she was the named beneficiary. The defendant insurer filed general and special demurrers to the petition as amended. The trial judge sustained the general demurrers, dismissing the petition, and the plaintiff appeals to this court.

Joseph H. Briley, George L. Jackson, Gray, for appellant.

Martin, Snow, Grant & Napier, George C. Grant, Macon, for appellee.

QUILLIAN, Judge.

The petition alleged that on November 19, 1963, the plaintiff's deceased husband paid the defendant $14.25 as a monthly premium on a life insurance policy in the amount of $25,000; that at that time the deceased was given a receipt which provided that after investigation and medical examination the policy and insurance would become effective; that three days before his death the insured stated to defendant's agent that he was going on a trip and that 'he had best get a physical examination'; that the defendant's agent assured him that he was insured until January 18, 1964, and that he could wait until his return to obtain a physical examination; that the insurance policy applied for contained a 31-day grace period after a premium became due; that the insured died December 29, 1963, without obtaining a physical examination. Attached as exhibits to the petition is an 'advance premium receipt' and parts 1 and 2 of an 'application for insurance to Life Insurance Company of Georgia.' The 'advance premium receipt' provides: '1. That if the company, after investigation and such medical examination, if any, as it may require, shall be satisfied that at the time of completion of said application, Parts I and II, the applicant was insurable and entitled under the company's rules and standards to insurance on the plan and for the amount and at the rate applied for, and shall approve said application, the insurance applied for, but not in excess of $50,000 (including all pending applications to the company) shall, by reason of this payment, take effect as of the date of completion of Part 2 of said application.'

The 'application for insurance' provides: '(1) that except as is otherwise provided by the receipt, if any, issued upon the detachable form below, the insurance hereby applied for shall not go into force unless and until the policy is delivered to the applicant and the first premium is paid during the continued good health of the applicant * * * (3) that no person other than the president, vice-president or secretary of the company can act for it to make, modify or discharge a contract, or waive any of the company's rights or requirements.'

Part 1 of the application was completed. The petition further alleged that part 2 of the application shows that it has been altered; that part 2 was completed in full but has since been altered; that on information and belief the application of the insured was approved for the insurance sought.

1. On appeal the plaintiff contends that, regardless of any requirement for the insurer to approve the application, the action by its agent in assuring the plaintiff's deceased husband that he had coverage estopped the insurance company from relying on such requirement.

There is no merit in this contention. The application provides: 'that no person other than the president, vice-president or secretary of the company can act for it to make, modify or discharge a contract, or waive any of the company's rights or requirements.' In Saddler v. Cotton States Life &c. Co., 101 Ga.App. 866, 870, 115 S.E.2d 398, 401, in construing a similar provision in an application for insurance, this court held: 'In New York Life Ins. Co. v. Patten, 151 Ga. 185, 197, 106 S.E. 183, 184, the Supreme Court held that express limitations on the power of the soliciting agent who received the application for insurance were valid and further stated: 'Manifestly, a life-insurance company may define and limit the power of a mere soliciting agent; and one dealing with such agent can not set up a waiver which he knew the agent had no power to make. '' See Maddox v. Life & Gas. Ins. Co. of Tennessee, 79 Ga.App. 164, 176(5), 53 S.E.2d 235 and Nat'l Acc. &c. Ins. Co. v. Davis, 179 Ga. 595(1), 176 S.E. 387. Thus, in this case where the power of...