Sec. Life Ins. And Annuity Co. v. Gober
| Decision Date | 31 July 1873 |
| Citation | 50 Ga. 405 |
| Parties | SECURITY LIFE INSURANCE AND ANNUITY COMPANY, plaintiff in error. v. NANCY GOBER, defendant in error. |
| Court | Georgia Supreme Court |
Insurance. Notice. Before Judge Bartlett. Greene Superior Court. March Term, 1873.
Nancy Gober, widow of William A. Gober, deceased, both for herself and as next friend of the children of William A. Gober, instituted her suit in Greene Superior Court against the security Life Insurance and Annuity Company, alleging in her declaration that said defendant was indebted to her inthe sum of $5,000 00, besides interest, on a receipt executed by said defendant on the 8th day of August, 1870, wherein said defendant, in consideration of a certain amount stated in said receipt to have been received by it, agreed to insure the life of the said William A. Gober for the sum of $5,000 00, in accordance with his application made for insurance, provided said application was accepted; that said application was accepted by defendant; that the same was for the use and benefit of the said wife and children of the said William A. Gober; that the said William A. Gober departed this life on the 16th day of September, 1871, and that due notice was given and proof made to said defendant of the death of the said William A. Gober, and payment demanded and refused. The receipt sued upon, is as follows;
The defendant filed the following pleas to the declaration: 1st. The general issue; and 2d, that no consideration in money was paid for the receipt, but that Gober only gave his note in payment of the receipt, with the understanding that if his application was accepted, the note was to be paid before he received his policy; and that he never paid said note, nor any premium; and that he never applied for his policy, but treated the same as a nullity, and would not have been entitled to anything, even if he had died within twelve months from the date of said receipt. That said contract was for the payment of annual premiums, and that if Gober had applied for and obtained his policy, the same would have been forfeited in consequence of his failure to pay the second year's premium, even if the first payment was valid.
When the declaration was read on the trial of the case, the defendant demurred. The demurrer was overruled.
The plaintiff introduced in evidence the receipt, and the interrogatories of Mrs. Nancy Gober, who testified that she was the plaintiff in the case, and the widow of William A. Gober, and that William A Gober died on the 16th day of September, 1871, leaving seven children, (giving their names in full,) and that she had never been paid anything by the defendant; that William A. Gober went to pay off the note but did not pay it; that he gave his note, and it was never paid; that she did not know whether Johnson had the note or not, nor whether he ever tried to get Gober to pay it; never heard Gober say so; that she did not know of Johnson's sending any word to Gober about paying the note, and never heard Gober say so. The plaintiff also proved by her attorney, William H. Branch, that he gave notice and proof of the death of William A. Gober to the defendant, and demanded *payment of $5,000 00; that the agents of the defendant admitted the acceptance of the application of William A. Gober, and that it was for the benefit of plaintiff; that he gave the notice to Dr. Townsend, and made demand on him and the defendant; that Dr. Townsend and Johnson were present; that he first demanded payment of Johnson, and then of Dr. Townsend, and that Dr. Townsend refused payment because second year\'s premium had not been paid; that Johnson had been dismissed from the agency before witness made the demand; that after the death of Gober, Johnson turned over the policy to witness; that when first asked about it, Johnson said it had not been issued, but soon after found it and said he had forgotten it, and that it had been in his drawer ever since its reception by him, and he had not thought of it from that day until then.
The plaintiff then introduced the application of William A. Gober for insurance, obtained from defendant on notice to produce, which showed upon its face that it was for a life policy, and that it was for the benefit of the wife and children of William A. Gober; that it contained the usual questions as to his health, statements of medical examiner, etc.; that it was recommended by W. G. Johnson, agent at Greensboro, Georgia, and accepted by the company on the 29th day of August, 1870, and that a policy was issued, (number twenty-six thousand five hundred and five,) which contemplated the payment of annual premiums in August, and that the application was of the same date as the receipt and medical examination.
The plaintiff closed.
The defendant introduced in evidence policy of insurance number twenty-six thousand five hundred and five, dated August 29th, 1870, which recited that, in consideration of the first annual premium, acknowledged to have been received by said company, as well as in consideration of the annual payment, by the 29th of August, of premiums, that said company insured the life of William A. Gober, for the sole use of his wife, Nancy Gober, and his children, in the amount of $5,000, *for the term of his natural life, subject to forfeiture upon the non-payment of annual premiums.
W. G. Johnson testified as follows: He was the agent for the defendant when the application was made. (Note for $99 15, signed by Gober, was then shown to him.) He wrote the note; it has not been paid; the policy came after the application had been forwarded—about the 12th of September, afterit was issued in August; had a conversation with Gober in December next thereafter, and told Gober if he did not pay up he would lose his rights in the company; Gober promised to bring cotton to Greensboro to pay his note, but never did so; never saw him but the one time; witness deposited the note with Storey as collateral, and raised money on it, and afterwards redeemed it himself; Gober lived about nine miles from Greensboro, and the contract was made at witness\' mill, about seven miles from town; when witness had the interview with Gober, in December, note was over due from 1st October,...
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Hart v. Waldo
...is in no sense chargeable to either of the defendants. She was, in law, bound to know its contents. See, on this subject, Security Ins. Co. v. Gober, 50 Ga. 405 (2); Thomson v. Southern Mutual Ins. Co., 90 Ga. 78, S.E. 652; Morrison v. Ins. Co., 69 Tex. 353, 6 S.W. 605, 5 Am.St.Rep. 63; Wie......