Wiley v. Rome Ins. Co.
| Decision Date | 30 January 1913 |
| Docket Number | 4,174. |
| Citation | 76 S.E. 1067,12 Ga.App. 186 |
| Parties | WILEY v. ROME INS. CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
While forfeitures stipulated in contracts of insurance are not favored, and, in order to avoid a forfeiture, the courts will seize any circumstance indicating an intention to waive it still, before an insurance company can be held to have waived the forfeiture, it must appear that the company, or some one authorized to represent it, had actual knowledge of the fact or circumstance upon which the waiver depended. When neither the insurer nor its agents have actual knowledge of a fact from which a waiver might be implied, the doctrine of constructive notice does not so apply between the insurer and the person to whom the policy is issued as that a waiver can be implied.
Constructive notice does not possess in its own essential nature the character assigned to it by law. From the exigent presumptive inferences which the law permits to be deduced from circumstantial evidence, and for reasons of public policy the law sometimes imputes constructive knowledge of a fact or condition. But this is, after all, a knowledge or notice established in the mind of the law, in consequence of the way in which the law interprets the evidentiary facts upon which the presumption of knowledge depends, and is a creation of the law in its act of construing facts, conduct circumstances, or instruments. Constructive notice of a fact for that reason, is not the equivalent of actual knowledge, so as to evidence a waiver of a forfeiture in a contract of insurance, dependent upon material misrepresentations of fact, merely because the insurer, by the exercise of reasonable care and diligence, could have ascertained the truth as to a fact upon which the waiver is alleged to depend.
(Additional Syllabus by Editorial Staff.)
An insurance company is charged with knowledge of all pertinent facts which have come to the knowledge of its duly authorized agents, and actual notice to the agent is imputed to the principal.
Error from City Court of Atlanta; H. M. Reid, Judge.
Action by Jennie Wiley against the Rome Insurance Company. Judgment for defendant, and plaintiff brings error. Affirmed.
Arnaud & Donehoo, of Atlanta, for plaintiff in error.
Dorsey & Shelton, of Atlanta, for defendant in error.
This case raises a question as to the bearing of section 4530 of the Civil Code upon an allegation in the plaintiff's petition, averring a waiver of the forfeiture in the contract of insurance if the person insured was not in good health at the time of the issuance of the policy. There was a demurrer to the original petition, upon the ground, among others, that the petition did not allege that Dillard Wiley, the person insured, was in sound health or an insurable risk at the time the policy was delivered. The plaintiff amended the petition by alleging that the person insured was examined, as required by the defendant, as a condition precedent to the issuance of the policy applied for, and that at the time the examination was made he was suffering from tuberculosis in the advanced second stage; that the affection at that stage is easily discernible to a practicing physician with the use of ordinary care; that the physician who made the examination in behalf of the company knew, or ought to have known, and by the exercise of ordinary care could have known, of said affection; and that the petitioner's application for insurance was made in good faith, and without the knowledge of the unsoundness of Dillard Wiley's health. The trial judge sustained the demurrer and dismissed the petition. The present writ of error challenges that judgment, not upon the ground that the defendant was chargeable with knowledge of all the facts which it might by the exercise of ordinary care, have ascertained before entering into this contract (for this intention is expressly disavowed), but upon the ground that, if the defendant had notice sufficient to put it upon inquiry, it was bound to pursue it with reasonable diligence, and was chargeable with knowledge of all facts to which such inquiry, conducted with ordinary care, might have led. This is at least implied notice, or implied actual notice; for counsel for the plaintiff in error did not seriously contend that a waiver can be based upon constructive notice.
We do not think that the provisions of section 4530 of the Civil Code have any application to the subject of waiver, as related to conditions imposing forfeitures in contracts of insurance. In our opinion constructive knowledge of the material fact upon which a waiver is alleged to depend cannot afford the basis of such a waiver. In order for one to waive a right, he must know that he possesses the right. He cannot waive a right of which he is ignorant, even though he might, by the exercise of ordinary care, have ascertained the existence of the right. Waiver implies knowledge of the right which is waived, and therefore it cannot rest upon the fact that, although the person waiving did not know his right, he might by due inquiry have known it. Waiver is itself but an implication from the forbearance to assert a known right, and must be voluntary. An act in regard to a given thing cannot be voluntary, as related to that thing, unless the actor has knowledge of its existence.
Section 4530, supra, declares: ...
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