Stephenson v. Empire Life Insurance

Hill, J. (After stating the foregoing facts.) The insured, Stephenson, received from the Empire Life Insurance Company a contract of insurance on his life for $1,000, dated June 30, 1908. He gave his note for a part of the premium due on the policy, payable without grace on November 1, 1908. He died on March 18, 1909, without having páid the note. One of the terms of the contract of insurance was that “If any premium is not paid on or before the day it is due, or if any note or other obligation that may be accepted by the company for the whole or any part of the first or any subsequent premium, or any other payment under this policy, be dishonored or not' paid on or before the day when due, this policy shall, without any affirmative act on the part of the company or any of its officers or agents, be null and void, except as herein provided.” The evidence shows that after the note became due, and while the insured was still in life, the defendant company made demands upon the insured for the amount due on the note, but the same was not paid. The following receipt was also offered and read in evidence: “Keceived from E. II. Stephenson of Chalybeate, Ga., the sum of Seventy and 63/100 dollars, being the first annual premium on policy No. 12951, due on June 30, 1908, which pays the regular premium up to 30th day of June,' 1909. This receipt to be valid must be signed by the President or Secretary, and countersigned by an authorized agent of the Company. Countersigned this 23rd day of July, 1908. J. T. Tillman, Agent. Thas. M. Callaway, Secretary.” The controlling question in this case is, whether, the defendant having issued its receipt, and the same having been accepted by the insured for the amount of the first annual premium on the policy, and the insurer having demanded the premium, as evidenced by the note, after the note became due and before the death of the insured, there was a waiver of the condition in the policy that it should be void if any note given for the premium, or a part thereof, was not paid on or before the day it became due. A receipt is only prima facie evidence of payment, and may be denied or explained by parol. Civil Code, § 5795. The undisputed evidence is [85] that the premium on the policy, as evidenced by the note or otherwise, was never paid. It is insisted that the note was taken in payment of the premium, as cash. But the policy by its very terms negatives the idea that the note was accepted as payment, whether paid or not. It is also argued that the insurance company, having endeavored to collect the noté after it became due, 'and prior to the death of the insured, will be held to have waived the condition that the policy is void if the note be not paid on or before maturity. The reply to this contention is found in the case of Sullivan v. Connecticut Indemnity Ass’n, 101 Ga. 809 (29 S. E. 41), where this court, on substantially the same facts as in this case, held as follows: “1. The evidence introduced by the, plaintiff, on the trial of an action upon a policy issued by a life-insurance association, showing that promissory notes given by the insured for the first premium on such policy had matured while he was in life, and that the same had never been paid, and the policy stipulating that ‘No insurance shall take effect under this policy until the first payment hereby required is made during the lifetime and continued good health of the insured/ and also that ‘In case any note, check, or draft,'given in payment or part payment of money due the association, shall not be paid at maturity, this policy lapses in the same manner as it would had the payment not been made when due/ there was no error in granting a nonsuit. 3. If, in a case of this kind, a demand upon the insured for payment of the premium notes after their maturity could, in any event, be treated as a waiver by the association of the foregoing stipulations, it certainly ought not to be so treated when payment is refused.” To the same effect, in the case of National Life Ass’n v. Brown, 103 Ga. 382 (29 S. E. 928), it was held: “It being in a contract of life insurance stipulated that ‘if all stipulated payments or notes are not paid on or before the day when due, then, and in either event, this contract shall become null and void and all moneys paid thereon shall be forfeited to the said association/ a failure by the insured to pay on or before its maturity a promissory note given for the first premium worked a forfeiture of the policy. And this is true although the company, through its agent, made an effort to collect the note but failed to do so.” See also, McCroskey v. Hamilton, 108 Ga. 640 (34 S. E. 711, 75 Am. St. R. 79); Neal v. Gray, 134 Ga. 510 (52 S. E. 622); Hipp v. Fidelity &c. Ins. Co., [86] 128 Ga. 491 (57 S. E. 892, 12 L. R. A. (N. S.) 319); Mutual Life Ins. Co. v. Clancy, 111 Ga. 865 (36 S. E. 944); Reese v. Fidelity Mut. Life Ass’n, 111 Ga. 482 (36 S. E. 637); Mutual Reserve Fund Ass’n v. Stephens, 115 Ga. 192 (41 S. E. 679). The above-cited cases are controlling. The writer has examined the records in the first two cases cited, and they can not be distinguished in their facts from the present case. Mr. Cooley, in his Briefs on the Law of Insurance, p. 2269. (f), lays down the rule substantially in accord with our own decisions, as follows:. “It is commonly stipulated by insurance companies that if a note is accepted for a premium, a failure to pay the note at maturity shall terminate the insurance. When the policy, or the policy and the note, contain a stipulation to this effect, a failure to pay at maturity a note given for the premium will work a forfeiture of the insurance,” citing numerous authorities in support of the text. We have been asked to review the cases of Mutual Life Insurance Company v. Clancy, Reese v. Fidelity Mutual Life Association, and Mutual Reserve Fund Association v. Stephens, cited supra, and, if found in conflict with the view contended for by the plaintiff in error, to overrule the same. After reviewing those cases, we decline to overrule them. Applying the law as laid down by this court in the 101 and 103 Ga., supra, to the facts of this case, irresped> ive of the errors alleged to have been committed, as set out in the grounds of the motion for a new trial, a verdict for the defendant was demanded, and the trial court did not err in directing accordingly. While objection was made to the testimony delivered by the secretary of the company to the effect that the premium had not been paid, and if for any reason assigned such testimony should have been excluded, the note given by the insured for a portion of the premium was introduced in evidence by the company. This note was payable to the company, and its possession by the payee was presumptive of its non-payment. Haywood v. Lewis, 65 Ga. 221; McCamy v. Cavender, 92 Ga. 254 (18 S. E. 415). There was no evidence to rebut this presumption. Therefore, if the court had excluded from consideration the testimony objected to, the verdict, under the law and evidence duly admitted, would none the less have been demanded. Judgment affirmed. All the Justices concur.