The Ala. Gold Life Ins. Co. v. Garmany

• Decision Date: 30 September 1884
• Citation: 74 Ga. 51
• Parties: The Alabama Gold Life Insurance Company. vs. Garmany.
• Court: Georgia Supreme Court

74 Ga. 51

The Alabama Gold Life Insurance Company. vs. Garmany.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1884.

Insurance. Contracts. Damages. Policy. Collateral Security. Title. Assignment. Gold. Currency. Practice in Supreme Court. Before Judge Adams Chatham Superior Court. June Term, 1884.

The defendant in error, Garmany, was insured by the Alabama Gold Life Insurance Company, under a policy, which made the premiums payable on August 27th of each year, without specifying any particular hour. Garmany had paid the premiums on that day, at any hour of the day, indifferently, and the payments were so always received by the company, without regard to hours For some years after the issuance of the policy, the company had a local agent in the city of Savannah, in this state, but removed all its agencies out of the state about 1879.

In May, 1880, Garmany assigned the policy to W. W. Chisholm to secure a debt, which he subsequently paid, and Chisholm returned the policy. The notices of maturity of policies, which were sent by the company, called upon him to pay by 12 (noon) of the day of maturity.

On the 27th of August, 1881, Garmany, failing to find any one in Savannah authorized to receive the payment, paid the amount to the Western Union Telegraph Company, to be paid in Mobile to the insurance company.

There is some discrepancy in the evidence as to the time when this was done. The manager of the telegraph office swore that he tendered the money in cash, between two and three o'clock in the afternoon of that day, at the office of the insurance company, while the secretary of the company testified that no regular tender was made until August 30, but he was notified at 6.10 P. M. on the 27th that there was money at the office for him. It was refused.

Plaintiff brought suit for the amount of premiums which he had paid. Under the charge of the court, he recovered a verdict for $1,247.13, principal, with interest. Defendant moved for a new trial, which was refused, and it excepted.

The other facts are stated in the decision.

John M. Guerard, for plaintiff in error, cited on measure of damages, 5 East., 449; Chitty Con., 691, 815; 7 Ins. L. Jour., 244; Cowper, 666; Park Ins., 579; May Ins., 711; Bliss Ins., 750; 100 Mass., 251; 89 Ind., 258; 93 U. S., 24; 1 C. L. Jour., 76, (S. C, 5 Bigelow Life and Accident R., 212); 72 N. Y., 125-6.

Chas. N. West, for defendant, cited Code, §3458; 3 Otto, 24; 28 Mo., 383; 61 Penn. (11 P. F. Smith), 107; —C. L. Jour., 792; 51 How. Pr., 1; 13 Johns., 359; 1 Harris & Gill, 258; 36 N. Y., 221; 5 Johns., 82.

Hall, Justice.

Had the plaintiff in the suit the right to maintain it, and if he had that right, was the proper measure of damages awarded him by the verdict of the jury? These are the questions made by the record, and their determination will dispose of the case.

1. The suit was brought upon an alleged breach of the conditions of a policy of insurance, to recover from the company the amount of the premiums paid by the assured, with interest thereon, because the company had wrongfully refused to receive one of the premiums, when tendered after 12 o\'clock M. of the day on which it fell due, and thus discontinued the insurance, when it should have continued it. The plaintiff below contended that, although the notices sent out by the company had required the premiums to be paid at 12 o\'clock M. on the day they fell due, yet there was no such stipulation in the policy itself, and, according to the course of all previous dealings with them, a literal compliance with this requirement had never been exacted. This position was established by proof, and under the repeated rulings of our courts, as well as the Supreme Court of the United States and those of a number of our sister states, it was well taken See Cotton States Life Insurance Co. vs. Lester, guardian, 62 Ga., 247, which is directly upon the point, and cites a large number of the authorities.

The defendant being estopped by its course of dealings as to this particular matter from refusing the plaintiff's tender of the premium, when it was offered, it is unnecessary to consider other questions made and argued as to its abstract right to insist upon a strict and literal compliance with this requirement; for all the purposes of the case, it is sufficient to hold that, if it had this right, it waived it by its former course of dealing, and, on the occasion in question, failed to notify the plaintiff, before the day, of any change of policy in this respect, or that it intended thereafter to adopt a different rule and insist on a strict and literal compliance. A breach of the contract by the defendant, not concurred in or assented to by the plaintiff, gave him the right to institute his suit, and to recover any damages he may have sustained in consequence thereof, unless he was not the owner of the contract at the time of the breach.

It is true that sometime prior to the date we are now considering, the plaintiff had assigned this policy in writing to W. W. Chisholm, and that the insurance company had been duly notified of the assignment. It had been pledged to Chisholm as collateral security for a debt which the plaintiff owed him, and upon the payment of this debt, it was returned to the plaintiff, though it does not appear to have been re-assigned in writing to him. This was done before the breach of the policy complained of. It is, nevertheless, fairly inferable from the evidence that the company was apprised, before and at that time, that Chisholm had ceased to have any beneficial interest in or control over the policy, and that nothing but the apparent naked legal title to it remained in him, while the real title was in the plaintiff, for the trust on which it was held being at an end, and the policy being turned over to the real owner, the title vested in him by operation of law as completely as it would have done by a re-assignment in writing. Code, §2314, and citations. See also Banks vs. Sloat, Russell & Co., 69 Ga., 330, 335. Thus it appears that the plaintiff held the legal title to this policy, as well as the beneficial interest therein, and by reason thereof was fully entitled to maintain the suit.

2. We have now to consider whether the court laid down the correct rule as to the measure of damages in his charge to the jury. There was no error in charging them that "if the plaintiff was entitled to recover, his measure of damages was the amount of premiums paid, with interest on each from the time such payment was made." But these premiums, by the express terms of the policy, being payable in gold, although several of the payments were made by arrangement between the parties in a depreciated currency, but at its current value in gold, we think there was manifest error in charging that " if the payments were made in currency, with the premium on gold added, when...