Sovereign Camp, W. O. W. v. Heflin

Decision Date15 June 1939
Docket Number12736.
Citation3 S.E.2d 559,188 Ga. 234
CourtGeorgia Supreme Court

Robt. G. Plunkett and R. F. Scarborough, both of Macon, for plaintiff in error.

Beck Goodrich & Beck, of Griffin, for defendant in error.

The policy sued on contains the following provisions relative to reinstatement of a member whose policy has been forfeited by reason of unpaid premiums, "Whenever instalments of assessments are paid by or for a person who has become suspended, for the purpose of making him a member, such payment shall be held to warrant that he is at the time of making such payment in good health, and to warrant that he will remain in good health for 30 days after such attempt to again become a member, and to contract that such instalments when so paid after he has become suspended for nonpayment of assessments shall be received and retained without waiving any of the provisions of this section or of these laws until such time as the secretary of the association shall have received actual, not constructive or imputed, knowledge that the person was not in fact in good health when he attempted to again become a member. Provided, that the receipt and retention of such instalments of assessments in case such person is not in good health shall not make such person a member or entitle him or his beneficiary to any rights whatever. The retention by the association of any instalment of assessment paid by or for any person after he has become suspended in order to again make him a member shall not constitute a waiver of any of the provisions of this constitution, laws and by-laws, or an estoppel upon the association."

JENKINS Justice.

1. While it is the general rule of law that knowledge of a fact is a necessary ingredient in the application of the doctrine of waiver or estoppel, and consequently a person is not ordinarily estopped by virtue of the existence of a fact of which he has no actual or constructive knowledge (United Benevolent Society v. Freeman, 111 Ga. 355 (3), 359, 36 S.E. 764; German American Mutual Life Association v Farley, 102 Ga. 720 (3), 742, 29 S.E. 615), there is nothing which would ordinarily prevent parties from contracting with respect to this rule of law, so as to prevent lack of knowledge of a fact from avoiding a waiver or estoppel. This is true for the reason that generally parties may agree to waive contract, statutory, or other rights. The exception is that the law does not permit a person to covenant against his own fraud or to contravene other rules of public policy. 12 Am.Jur. 682, 683 (§§ 181, 182) et seq.

2. Policies

of insurance, being prepared and written by the insurer, are to be construed strictly in favor of the insured and against the insurer. Benevolent Burial Association v Harrison, 181 Ga. 230, 239, 181 S.E. 829, and cit.

3. While great caution is necessary in applying the maxim "expressio unius est exclusio alterius," where an insurance association in preparing and writing a contract of insurance has provided that it shall be forfeited by non-payment of premiums when due, but where under the terms of the policy the right is reserved for the insured to reinstate the policy within a prescribed period after default, provided that payment of the reinstatement premium shall be taken as a warranty that he is in good health and will so remain for 30 days thereafter, and where the insurer without relying upon the general rule of law with respect to estoppel, has seen proper to provide in the contract prepared by it that the receipt and retention of the particular reinstatement premium "shall not constitute a...

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