Progressive Life Ins. Co v. Bohannon

• Decision Date: 29 October 1946
• Docket Number: No. 31321.,31321.
• Citation: 40 S.E.2d. 564
• Parties: PROGRESSIVE LIFE INS. CO. v. BOHANNON.
• Court: Georgia Court of Appeals

40 S.E.2d. 564

PROGRESSIVE LIFE INS. CO.

v.BOHANNON.

No. 31321.

Court of Appeals of Georgia, Division No. 1.

Oct. 29, 1946.

Rehearing Denied Dec. 11, 1946.

[40 S.E.2d. 5645]

Syllabus by the Court

1. A stipulation in a life insurance policy to the effect that the policy cannot be assigned without-the written consent of the insurance company does not apply to an assignment of the policy after the death of the insured.

2. Ground 3 of the demurrer is without merit.

3. A soliciting agent of an insurance company who negotiates the contract is a general agent of the company as to that particular contract and is the alter ego of the company as effectively as any officer thereof.

4. The question as to whether the policy in the instant case was delivered is a question of fact to be determined by the jury.

5. A refusal by a life insurance company of liability on a policy, based on lack of proof of death, when the life insurance company refuses to furnish blanks upon which proof of death is to be made, relieves the insurer of complying with that provision of the policy regarding proof of death.

Error from Superior Court, Laurens County; R. Earl Camp, Judge.

Suit by Nina Bohannon against Progressive Life Insurance Company to recover on a life insurance policy. To review a judgment overruling its demurrers to the petition, defendant brings error.

Judgment affirmed.

Mrs. Nina Bohannon, hereinafter called the plaintiff, brought suit on an insurance policy against the Progressive Life Insurance Company, hereinafter called the defendant. Demurrers, both general and special, were filed and overruled by the court. On this judgment the defendant assigns error.

The petition, omitting the formal parts, reads:

"1. That the defendant herein, the Progressive Life Insurance Company, is an insurance company having agencies, has an agent, an office and a place of business in Laurens County, Georgia, and had an agent and place of doing business in said State and county at the time the insurance contract hereinafter referred to was made out.

"2. That the said defendant is indebted to your petitioner in the sum of $2,018.27, with interest thereon from July 1, 1945, at the rate of seven per cent per annum, as will more fully appear from the facts herein set forth.

"3. That the said defendant, on the first day of March, 1945, issued its policy of life insurance on the life of James F. Bo-hannon in decreasing amounts as shown by said policy, with the First Federal Savings and Loan Association, of Dublin, Georgia, a creditor of the said insured, as beneficiary.

"4. A true and correct copy of the policy of insurance issued by the defendant is hereto attached and made a part of this petition.

"5. Thereafter, on the 30th day of March, 1945, by proper endorsement of the defendant, the effective date of the policy was changed from March 1, 1945, to April 1, 1945.

"6. On or about the 9th day of June, 1945, the defendant, through its duly authorized agent, the First Federal Savings and Loan Association, Dublin, Georgia, collected from said insured the sum of $5.37 in full payment of the premiums due on said policy for the months of April, May, and June, 1945, and delivered said policy of insurance to said insured, or retained the same in its possession for the use and benefit of the insured.

"7. The said agent kept and retained said premiums and now keeps and retains them, for the use and benefit of said defendant.

"8. At the time of the payment of said premiums, the said insured was alive and in good health.

"9. The insured was not requested to furnish evidence of insurability, other than that already furnished, until July 3, 1945.

"10. On or about the 19th day of June, 1945, the said James F. Bohannon was Suddenly stricken with a heart attack anddied in a few minutes and before medical aid could be had.

"11. Your petitioner shows that there was no default in the payment of the premiums on said policy until said policy was put in effect by the payment of the first premium, and also shows that said policy could not be reinstated until it had once become effective by the payment of the first premium.

"12. Petitioner further shows that the defendant waited an unreasonable length of time to insist that the insured furnish evidence of insurability, which petitioner insists was not required under the circumstances herein recited, to-wit, from June 9, 1945, until July 3, 1945, at which latter time the insured was dead, and is now estopped to insist upon any part of its insurance contract relating to evidence of insurability.

"13. Petitioner also shows that the defendant is further estopped to contend that said insured must furnish evidence of insurability, which petitioner denies to be necessary, by reason of the following facts.

"14. That the said defendant prepared and executed said policy of insurance in its Atlanta, Georgia, offices, and mailed the same to its said Dublin agent for delivery, actual or constructive, to the insured, upon his paying the first premium while alive and in good health.

"15. At no time after March 30, 1945, did the said defendant request its said agent to return the policy to the Atlanta office, or not to deliver said policy to the insured while he was alive and in good health, or to receive the payment of the first and additional premiums.

"16. The defendant, well knowing that the premiums due on the 1st days of April, May, and June, 1945, had not been paid, still permitted said agent to retain said policy to become effective upon payment of the first and additional premiums by the insured while alive and in good health.

"17. By reason of its said conduct, the said defendant is estopped to deny the authority of its said agent to receive said premiums and thereby put said policy of insurance in effect, and is further estopped to contend that the said insured must furnish evidence of insurability satisfactory to the defendant.

"18. Petitioner shows that the defendant has waived the requirements of said policy relating to the furnishing of proofs of death, by refusing to furnish the same and by refusing to pay the proceeds of said policy and by denying liability thereunder.

"19. On or about the 22nd day of October, 1945, the beneficiary under said insurance policy, transferred and assigned its right, title, and insurance policy, transferred and assigned its right, title and interest in and to said policy to petitioner, the wife of the said insured, and authorized her to bring suit thereon in her own name, all of which will more fully appear from a true and correct copy of said assignment hereto attached and made a part of this petition."

The demurrers are: "1. The petition is demurred to generally because it fails to set forth a cause of action.

"2. The petition is demurred to generally because the plaintiff shows no right of action in herself to bring said action.

"3. Because the petition shows that the alleged assignment of the policy did not take place until after the death of the insured, and further to show any right or authority in the First Federal Savings and Loan Association, the beneficiary named in the policy, as to transfer and assign said policy to the plaintiff.

"4. Paragraphs 6 and 7 of the petition are specially demurred to because they show that the first premium, as well as the premiums for the months of May and June, 1945, were not paid when due, or that the time for their payment was extended by the President, Vice-President or Secretary of the defendant company in writing.

"5. Said paragraphs 6 and 7 are further demurred to because they fail to show delivery of said policy to the insured and its acceptance by him and payment of the first premium in accordance with the stipulations of said policy."

Ground 6 is abandoned.

"7. Paragraph 18 is specially demurred to for the reason that it fails to show that any one entitled to make claim tothe proceeds of said policy has offered to make proof of the death of the insured.

"8. Paragraph of the petition is specially demurred to for the reason that the allegations therein fail to show that the alleged transfer and assignment of said insurance policy was made after written notice had been given to the insurance company by the insured, and that such change of beneficiary had been assented to by an endorsement on said policy by the company at its home office and that said assignment was filed in duplicate at the home office of the insurance company.

Craighead, Dwyer & Lavender, of Atlanta and M. H. Blackshear, of Dublin, for plaintiff in error.

Will Ed Smith, of Eastman, for defendant in error.

GARDNER, Judge.

1. We will discuss grounds 1, 2, and 8 of the demurrer together. These grounds attack the petition because the plaintiff had no right to maintain the action since the policy was not assigned in compliance with a stipulation in the policy concerning the assignment of the policy. The policy provides: "No assignment of this policy shall be binding upon the company unless filed in duplicate at the home office one to be retained by the company, and the other to be returned to the insured. The company assumes no responsibility for the validity of the assignment." In Steele v. Gatlin, 115 Ga. 929, 931, 42 S.E. 253, 59 L.R.A. 129, it was said: "A policy of life insurance is a chose in Action * * *." Code, § 85-1803 reads: "All choses in action arising upon contract may be assigned so as to vest the title in the assignee, but he takes it, except negotiable instruments subject to the equities existing between the assignor and debtor at the time of the assignment, and until notice of the assignment is given to the person liable." Code, § 56-828 reads: "After the loss shall occur, a sale of the property insured and transfer of the policy shall not affect the liability of the insurer, but the assignee may recover on the policy to the same extent as the assignor could have done." The Supreme Court in the case of Georgia Co-op. Fire Ass'n. v. Borchardt & Co., 123 Ga. 181 (1 and...