Vardeman v. Penn Mut. Life Ins. Co

• Citation: 125 Ga. 117,54 S.E. 66
• Parties: VARDEMAN. v. PENN MUT. LIFE INS. CO.
• Decision Date: 24 March 1906
• Court: Supreme Court of Georgia

54 S.E. 66

125 Ga. 117

VARDEMAN.

v.PENN MUT. LIFE INS. CO.

Supreme Court of Georgia.

March 24, 1906.

1. Corporations — General agent — Officers.

The term "general agent, " as applied to one representing a corporation, does not necessarily import that the person designated is an officer of the corporation.

2. Customs and Usages — Exclusion by Terms of Contract.

A custom of trade or business does not by implication become a part of a written contract, when there is a distinct provision in the writing expressly denying the right claimed under the custom.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Customs and Usages, § 29.]

3. Reformation of Contract — Insurance Policy.

A petition seeking to reform a contract of insurance is properly dismissed on demurrer, when it appears therefrom that the agent of the insurer with whom the contract was made had no authority to make the contract in the form in which it is sought to be reformed.

(Syllabus by the Court,)

Error from Superior Court, Muscogee County; Wm. A. Little, Judge.

Action by A. O. Vardeman against the Penn

Mutual Life Insurance Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Mrs. A. O. Vardeman brought suit against the Penn Mutual Life Insurance Company, and alleged: On July 31, 1902, the company issued a policy of insurance upon the life of A. O. Vardeman, agreeing to pay $1,000 to petitioner in case of the death of the insured. When A. O. Vardeman purchased the policy it was represented to him that the second premium need not be paid until 30 days after July 31, 1903. The insured was informed and assured by the agent of the defendant that "it was the general custom of their business, and was universal, " to extend the insurance and date of payment for 30 days from the date of payment named in the policy. When insured insisted on inserting this provision in his contract of insurance, the agent, in the presence of the insured, referred the matter to the "general agent of the company in Columbus, " who stated in the presence of the insured that it was not necessary, that it was the custom of the defendant to so extend the time of payment, and that the receipt would be in his office and that the insured could pay it in the 30 days. The insured died on August 20, 1903. The second premium was due under the policy July 31, 1903. On August 22, 1903, petitioner tendered to the defendant the amount of the second premium. The defendant refused to accept it, and declared the policy had been forfeited. Petitioner prayed for judgment, and for a reformation of the contract of insurance, so that it would contain provision for the 30 days extension. The policy contained the stipulation that if the premiums were not paid when due, the policy would be null and void, and the further stipulation: "No alteration of this contract or waiver of any of its conditions shall be valid unless made in writing and signed by an officer of the company." The defendant demurred to the petition, on the ground that it set forth no cause of action. The demurrer was sustained, and the petition dismissed. To this judgment the plaintiff excepted.

Hatcher & Carson and McCutchen & Bowden, for plaintiff in error.

Geo. W. Pepper, Garrard & Garrard, and W. C. Neill, for defendant in error.

COBB, P. J. (after stating the foregoing facts). The contract of insurance contained the following stipulation: "No alteration of this contract or waiver of any of its provisions shall be valid unless made in writing and signed by an officer of the company." The plaintiff in this case sought a reformation of the contract which would alter it materially, and waive one of its conditions, upon the ground that the alteration and waiver were made by "the general agent of the company at Columbus." In the case of Hutson v. Prudential Ins. Co., 122 Ga. 847, 50 S. E 1000, there was a stipulation that no provision or condition of the policy could be waived except by endorsement on the policy, signed by the president, one of the vice presidents, the secretary, the assistant secretary, or the actuary, and it was held that a general agent was without authority to waive any condition in the policy, and that no person save the designated officers of the company would have such authority." In the present case the person authorized to make the waiver is designated by the general term "officer, " and the question is whether a general agent is an officer.

One distinction between officers and agents of a...