Porter v. Soc

Decision Date12 March 1902
Citation114 Ga. 937,41 S.E. 45
PartiesPORTER v. HOME FRIENDLY SOC.
CourtGeorgia Supreme Court

LIFE INSURANCE POLICY—RIGHT OF ACTION —DISAPPEARANCE OF INSURED.

1. When a policy or certificate evidencing a contract of life insurance expressly stipulates that "the disappearance or long-continued absence of the [insured], unheard of, shall not be regarded as evidence of death or any right to recover till the full term of expectation has expired, " the person named as beneficiary in such policy is not entitled to maintain an action thereon on the theory that the insured has disappeared, and has not been seen or heard of for a period exceeding seven years, without alleging that the full term of his life expectancy has expired.

2. Where, in such an instrument, there is an express stipulation that "no agent has authority in any manner * * * to make, alter, or discharge contracts, " the beneficiary is not entitled to maintain an action against the insurance company on the theory that one of its agents had made an agreement with such beneficiary to the effect that, if the latter would pay the premiums, etc., for a specified number of years, the amount of the policy would then be paid to her.

(Syllabus by the Court.)

Error from city court of Atlanta; H. M. Reid, Judge.

Action by E. Porter against the Home Friendly Society. Judgment for defendant, and plaintiff brings error. Affirmed.

W. H. Terrell and Edgar Latham, for plaintiff in error.

Howard Van Epps, for defendant in error.

FISH, J. On the 18th of May, 1900, Emma Porter brought suit in the city court of Atlanta against the Home Friendly Society upon a policy or certificate of life insurance issued by the defendant to her son, Robert P. Porter, in which she was named as the beneficiary. The petition alleged that the defendant was a corporation created under the laws of the state of Maryland, having a place of business and an agent in the city of Atlanta, Ga.; that the policy was issued on the 7th day of April, 1890; that in 1892 Robert P. Porter disappeared, and had not since been seen or heard of; that immediately upon his disappearance the plaintiff notified the defendant verbally at its office in the city of Atlanta of such disappearance; that the defendant "then and there, upon notice aforesaid, agreed with petitioner that, if she would promptly pay all assessments and premiums and dues upon said policy or certificate, it would pay the full amount thereof, " and "would waive the terms and conditions embodied in and set forth in the first sentence of the eighth clause of said policy." A copy of the policy or certificate of insurance was attached to the petition as an exhibit, from which it appeared that "the terms and conditions" here referred to were that "the disappearance or long-continued absence of the member unheard of shall not be regarded as evidence of death or any right to recover till the full term of expectation has expired." It was further alleged that, "in accordance with said agreement, she did pay to said defendant all dues and...

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