Royal Benefit Society v. Naylor , 14 Ga. App. 202 ( 1914 )

Roan, J.

The Boyal Benefit Society, a fraternal benefit association having its home office in Washington, D. C., on May 25, 1912, issued a policy on the íife of Mrs. F. A. Naylor, of Savannah, Georgia, through one of its agents located in Savannah, the beneficiary under the policy being Andrew Naylor, her husband'. As part of the contract of insurance the following stipulations, in substance, appear: A payment is due on this certificate for 'each month, payable on or before the last day of the month. If the payments shall not have been made within the stipulated time as provided, this certificate shall thereupon become lapsed and forfeited. When lapsed this certificate can be reinstated with the consent of the society, and provided that at the time such payments are received at the home office of the society, and at the expiration of fifteen days thereafter, the member is in good health and free ■from disease or disability. If at the expiration of fifteen days after the receipt of said payments at the home office, the member should not be in good health and free from disease or disability, or should the member’s physical condition have become impaired in an}' way since this certificate became void or lapsed, then only the arrearages or overdue payments and all subsequent payments shall upon demand be returned to the assured. Overdue payments made to an agent or collector shall not be considered as having been received at the home office until the remittance for said overdue payments has actually been received at the home office from said agent or collector; and the society is not to be held liable for any delay in its transmission. The contract contains the further stipulation and agreement that agents of the company “are not authorized to make or modify this or any other contract in behalf of the society, and can not extend the time of any payments, nor give credits, nor waive forfeiture, nor bind this society in any way beyond its statements herein.” “Receipts for payments on this certificate will not be valid except upon regular printed forms issued by the society for the purpose.” It was testified that the payments due for the months of June and July, 1912, were not made until August 6, 1912, when the husband of the assured went to the benefit society’s agent in Savannah, and informed the agent that his wife was ill, but was daily improving, and paid the agent $2.70, the total amount then overdue; and on August 8, 1912, he paid the agent $1.35, the amount due for that month. The assured died on August 10, 1912. As to these facts there was no dispute in the argument. A suit for the amount of the policy was brought against the benefit society by the husband, in a justice’s court. The jury in that court rendered a verdict for the plaintiff. Certiorari was sued out by the defendant, the judge of the superior court overruled the certiorari, and the defendant excepted.

There was no evidence that the amount of the arrearages or overdue payments had reached the home office of the defendant before the death of the assured; and as the contract provided that no agent had a right to waive any part of the contract, and as no payment, evidenced by a receipt on one of the society’s regular printed forms, as provided for, was made on the part of the assured until August 6, 1912, at which time the policy had lapsed, and as the payment then made could in no event, under the contract, restore life to the policy sooner than fifteen days after payment was made, and as the ’assured died before the expiration of the fifteen days, it follows that when she died she had no insurance in the society, and the husband had no legal claim for such. The verdict against the defendant was therefore contrary to law and evidence, and the judge of the superior court committed error in not sustaining the certiorari and ordering a new trial. The general rule that acceptance of an overdue premium 'amounts to a waiver of a forfeiture has no application in the present case. Even if knowledge of the agent that the insured was ill at the time the overdue premium was paid is imputable to the insurer, by express terms of- the contract acceptance of the premium would not have the effect of reinstating the certificate unless fifteen days had elapsed after the premium was thus accepted. This being true, the certificate, by the express terms of the contract, was never reinstated, and was lapsed at the time of the death of the insured. Eor these reasons the decisions relied upon by the defendant in error on the subject of waiver are not applicable. See the following authorities: Lippman v. Ætna Ins. Co., 108 Ga. 391 (33 S. E. 897, 75 Am. St. R. 62); Mutual Life Ins. Co. of Ky. v. Clancy, 111 Ga. 865 (36 S. E. 944); Reese v. Fidelity Mutual Life Asso., 111 Ga. 482 (36 S. E. 637); Mutual Reserve Fund, Life Asso. v. Stephens, 115 Ga. 192 (41 S. E. 679); Reed v. Travelers Ins. Co., 117 Ga. 116 (43 S. E. 433); Hutson v. Prudential Ins. Co., 122 Ga. 847 (50 S. E. 1000); Clark v. Mutual Life Ins. Co., 129 Ga. 571 (59 S. E. 283); Brown v. Mutual Benefit Life Ins. Co., 131 Ga. 38 (61 S. E. 1123); Few v. Supreme Lodge Knights of Pythias, 136 Ga. 181 (71 S. E. 130); Stephenson v. Empire Life Ins. Co., 139 Ga. 82 (76 S. E. 592). Judgment reversed.