Grant v. Alabama Gold Life Insurance

■Jackson, Chief Justice. Grant, for the use of Sheldon, brought suit against the Alabama Gold Life Insurance Company for the recovery of two policies of insurance, one on the life of Grant, for refusal to give a paid-up policy thereon, and the other for refusing to pay loss, on the death of Taylor, for insurance on his life by Grant. The jury found for defendant, a new trial was denied, and the case is here for review. 1. The books of the company were required by notice extending to all dealings in Georgia. A transcript of dealings between plaintiff and the company was furnished, [581] under section 3517 of the Code; whereupon the plaintiff moved for judgment, and after verdict repeated the motion for judgment non obstante veredicto. The motion was refused, and this is assigned as error. We fail to see the error. It was a notice under the statute; the defendant responded by a transcript under the statute; and literally it is enough. Certainly it would be very harsh to render judgment against a party for following the statute, in answer to a statutory notice to produce books. The plaintiff was not without remedy prescribed by statute in the next section of the Code (section 3518), which provides for a commission to examine the books and make a full transcript. True that, too, refers only to dealings in the books between plaintiff and defendant; but the court, if it saw other transcripts were material, might well invoke the spirit of the statute, and would doubtless have done so, and directed the commission to transcribe everything relevant to the case. Thus nobody would be hurt, and complete justice be done. 2. Another motion was made for judgment non obstante veredicto because of a plea of defendant which set up, in objection to a recovery on the Grant policy, that it had been assigned to the company as. collateral for a loan to Grant, and it is insisted that, if plaintiff could not recover thereon, then he was entitled to judgment on the premiums he had paid, notwithstanding the verdict. We do not think he was so entitled. If his policy had been transferred to a third person, the premiums must be continuously paid, to prevent lapse and ferfeiture. If transferred for collateral security to a third person, the same thing must be done; why not, if transferred as collateral, to the defendant company itself? If the company discharged its full duty in respect to the policy, notice pursuant to usage, and everything else necessary to bind the plaintiff, why should not the plaintiff keep alive this collateral with the company to secure them as well as others ? [582] It would be manifestly unjust to give a security, kill it by failure to keep it alive by feeding it, and then claim a judgment overriding the verdict of the jury for the result of his own. wrong. It would be to recover all the premiums already paid by violating the contract to pay more, unless, by three months’ notice for a paid-up policy under the contract,, he had entitled himself to insure no longer. If there be any black letter law of technical pleading and its result technically, which would authorize such a consequence, it is time to stop it. We are not aware of any such. 3. There was no error in admitting interrogatories. 4. Under the facts disclosed by this record, we think that the unreasonable delay.of the plaintiff, the sleep over his rights, so deep that many months after both policies had lapsed he had not awaked, in one case oyer a year, some fifteen months, as I remember, now, and in the other not perhaps a full year, but.more than half of it—so deep that it may be inferred that only Taylor’s death awoke him—that this unexplained, and continued neglect on his Own part will always prevent a recovery in this case on the merits thereof. While, in our judgment of the law? hardly an open question in this court, the custom and usage in respect to personal notice to the plaintiff by the agent in Savannah became, if not an actual part of the contract between Grant and the company, yet such an incident thereto, and so incorporated into the spirit of their dealings, as to require the company to keep it up or to give notice thereof to Grant, before substituting for it notice by mail from another state ; yet the insured must act with reasonable diligence, and six months? delay to pay a premium for want of notice appears to us so unreasonable as to show a purpose to abandon, the policy and let it lapse; and if a jury should decide that such was reasonable, the court should not permit the verdict to stand. Two or three months in a policy of annual premiums, a month or six weeks in semi-annual premiums, is time enough for [583] one who lias his life insured, though notice does not come to him from the company according to usage, to bestir himself to ascertain why the notice has not come, and not to do so within such reasonable time, without some overpowering providential cause, ought to conclude him, upon the idea that he had himself declined further to keep insured, or had so slept that the maxim, “ Non dormientibus sed vigilantibus lex servad’ applies. Irrespective, therefore, of any charge or ruling of the court upon the main issues in the case, we think the verdict right, and that the court below, therefore, did right in overruling the motion for a new trial. 5. The principle of law touching the main issue, however, we think it well to announce, so far as the law of this state, in our judgment, fixes it. (a.) In respect to notice, as to all other dealings between parties, custom and usuage followed for sometime in the intercourse between them, if suddenly changed, is well calculated to operate as a fraud upon those confiding in it, by inducing them not to hold in memory the exact day a thing should be done, because of the habit of the intercourse between parties for notice to be given of that day. (5.) The rule should be rigidly applied where the result of not coming up to the exact date works a forfeiture of all past payments as well as of the entire contract. (c.) In this state, where life insurance companies deal with the assured for time sufficient to make it their usage and custom to give notice to the assured of the date when premiums fall due, and fail to give notice thereof, the policy will not be forfeited, if, within a period so reasonably short as to show an intent to continue his policy, the assured take steps to inquire and pay the premium. Code, §§1, sub-sec. 4, 2070, 2648, 3805; 62 Ga., 247; Ala. Gold Ins. Co. vs. Garmany, 74 Ga., 51. In Ins. Co. vs. Eggleston, 96 U. S. R., 572, the United States Supreme Court put itself on the same general line, though afterwards, in Thompson vs. Ins. Co., in 104 U. S. [584] E-, 252, that court, distinguishing the case from Ins. Oo. vs. Eggleston, does not apply the principle to notice of the date of payment of premiums. We do not see the principle on which custom and usage in any other material matter will, if suddenly stopped, prevent a forfeiture, and yet, in respect to notice, though just as long and fixed, of time to pay the premiums, it will not have the same effect. The lulling to sleep is just the same, the opportunity to commit fraud the same, the abhorrence of the law to forfeiture the same, and the spirit and reason of the law, so far as we see it, just the same. The notice to what agent the assured should pay, and failure to give it, prevented the forfeiture in Eggleston’s case, because the habit and usage were to give that notice; the failure to give any notice at all, though in the habit and usage of doing so for years, did not prevent forfeiture in Thompson’s case. In neither case did the contract require notice; in Eggleston’s, none to designate the agent was required; in Thompson, none to give notice of date of payment. Both cases stood on usage outside of contract; and the principle that usage enters into, or shapes afterwards, the mode of carrying out the contract, especially to avoid forfeiture, when too nobody is badly hurt, but only a little time lost, it seems to us, covers both. In Thompson’s case,however, the premium was never paid or tendered, and that showed that the insurance company was hurt. And there the case really turned. See also 106 U. S. E., p. 36. Be that, however, as it may, we adhere to the spirit of the Georgia Oode, and what we consider the reason and spirit of a great principle; and so lay down the law in this state as indicated heretofore in the cases cited. This judgment is affirmed because the plaintiff slept too long. Judgment affirmed.