Jones v. North Carolina Mutual Life Insurance

Court of Appeals of Georgia

Jones v. North Carolina Mutual Life Insurance

177 S.E.2d 199, 122 Ga. App. 383, 1970 Ga. App. LEXIS 873

CourtCourt of Appeals of Georgia

DecidedJuly 6, 1970

Docket44969

StatusPublished

Cited by4 cases

This text of 177 S.E.2d 199 (Jones v. North Carolina Mutual Life Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jones v. North Carolina Mutual Life Insurance, 177 S.E.2d 199, 122 Ga. App. 383, 1970 Ga. App. LEXIS 873 (Ga. Ct. App. 1970).

Pincite

Opinions

Deen, Judge.

Headnote 1 needs no elaboration. Since the policy although issued was not delivered during the lifetime of the appli[385]*385cant, its provisions are immaterial (Sasser v. Coastal States Life Ins. Co., 113 Ga. App. 17, 19 (147 SE2d 5)) and the existence of liability must depend on whether the binder was in effect on December 2, the date of death.

It is elementary that the application and the binder receipt must be construed together. Looking at both and giving to them a reasonable construction it is apparent that the insurer intended to be bound if (a) the first full premium was paid in advance (b) the insured was found to be a good risk after a medical examination and (c) that if these conditions were met coverage would begin on the date of completion of the medical examination.

These conditions were met. The insured elected in his application to pay premiums on a quarterly basis. The company does not deny that a full quarterly premium was received by it prior to the completion of the examination. The company’s medical examiner completed his examination on November 30, 1967, his report considering the applicant a "first class risk.”

Clearly, under the stated terms and conditions, the policy took effect on this date and was in effect when the insured was fatally injured on December 1, 1967.

From the record, it is clear that the company’s position in offering to return the full premium, was only that the insured was not alive on the date the policy was issued by the company. This provision in the receipt was immaterial and irrelevant since the effective date of the insurance was from the "date of completion of the examination” where a full first premium had been paid by applicant and received by the company. The company never denied that a first full premium was received prior to the medical examination and that the medical examination was completed and showed applicant an acceptable risk.

While for purposes of this motion it is established that the first full quarterly premium was received prior to the completion of the medical examination on November 27, and that the insured was in good health at that time, it is contended by the insurer that the binder did not become effective because the fact of full payment does not appear thereon. The agent could of course have amended the binder receipt by showing payment of the balance of the first full premium, but he did not in fact do so. The omission, [386]*386if material, should therefore be charged to the defendant’s agent and not to the applicant. But we do not consider this fact material in view of Dunn v. Abrams, 97 Ga. 762, 763 (25 SE 766) where it was held: "The recital of nonpayment in the application is not conclusive as to the fact of payment, and when as a matter of fact it was paid, and the company issued its regular receipt therefor, this was a compliance with the above requirement in the face of the policy, and it was not invalid because of such recital in the application.” The recital of partial payment is not conclusive against the plaintiff where the full first premium was in fact paid prior to the effective date of the binder (November 27) and during the good health of the insured. Insurance contracts, like any others, are to be construed according to the manifest intention of the parties, avoiding forfeiture unless absolutely necessary. Penn Mut. Life Ins. Co. v. Childs, 65 Ga. App. 468 (16 SE2d 103); Atlas Assur. Co. v. Lies, 70 Ga. App. 162 (27 SE2d 791); Royal Exch. Assur. of London v. Thrower, 240 F. 811. In Guest v. Kennesaw Life &c. Ins. Co., 97 Ga. App. 840 (3) (104 SE2d 633) it was held that the binder was effective although an amount less than the full first premium was paid, it being "sufficient to cover the insured between the acceptance of the risk and delivery of the policy.” Here the full premium had been paid at the time of acceptance of the risk, and the fact that the defendant’s agent did not reissue a binder receipt to reflect this fact can not be allowed to work a forfeiture against the plaintiff.

Judgment reversed.

Bell, C. J., Jordan, P. J., Whitman and Evans, JJ., concur. Hall, P. J., Eberhardt, Pannell and Quillian, JJ., dissent.

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Deen, Judge.

Headnote 1 needs no elaboration. Since the policy although issued was not delivered during the lifetime of the appli[385]*385cant, its provisions are immaterial (Sasser v. Coastal States Life Ins. Co., 113 Ga. App. 17, 19 (147 SE2d 5)) and the existence of liability must depend on whether the binder was in effect on December 2, the date of death.

It is elementary that the application and the binder receipt must be construed together. Looking at both and giving to them a reasonable construction it is apparent that the insurer intended to be bound if (a) the first full premium was paid in advance (b) the insured was found to be a good risk after a medical examination and (c) that if these conditions were met coverage would begin on the date of completion of the medical examination.

These conditions were met. The insured elected in his application to pay premiums on a quarterly basis. The company does not deny that a full quarterly premium was received by it prior to the completion of the examination. The company’s medical examiner completed his examination on November 30, 1967, his report considering the applicant a "first class risk.”

Clearly, under the stated terms and conditions, the policy took effect on this date and was in effect when the insured was fatally injured on December 1, 1967.

From the record, it is clear that the company’s position in offering to return the full premium, was only that the insured was not alive on the date the policy was issued by the company. This provision in the receipt was immaterial and irrelevant since the effective date of the insurance was from the "date of completion of the examination” where a full first premium had been paid by applicant and received by the company. The company never denied that a first full premium was received prior to the medical examination and that the medical examination was completed and showed applicant an acceptable risk.

While for purposes of this motion it is established that the first full quarterly premium was received prior to the completion of the medical examination on November 27, and that the insured was in good health at that time, it is contended by the insurer that the binder did not become effective because the fact of full payment does not appear thereon. The agent could of course have amended the binder receipt by showing payment of the balance of the first full premium, but he did not in fact do so. The omission, [386]*386if material, should therefore be charged to the defendant’s agent and not to the applicant. But we do not consider this fact material in view of Dunn v. Abrams, 97 Ga. 762, 763 (25 SE 766) where it was held: "The recital of nonpayment in the application is not conclusive as to the fact of payment, and when as a matter of fact it was paid, and the company issued its regular receipt therefor, this was a compliance with the above requirement in the face of the policy, and it was not invalid because of such recital in the application.” The recital of partial payment is not conclusive against the plaintiff where the full first premium was in fact paid prior to the effective date of the binder (November 27) and during the good health of the insured. Insurance contracts, like any others, are to be construed according to the manifest intention of the parties, avoiding forfeiture unless absolutely necessary. Penn Mut. Life Ins. Co. v. Childs, 65 Ga. App. 468 (16 SE2d 103); Atlas Assur. Co. v. Lies, 70 Ga. App. 162 (27 SE2d 791); Royal Exch. Assur. of London v. Thrower, 240 F. 811. In Guest v. Kennesaw Life &c. Ins. Co., 97 Ga. App. 840 (3) (104 SE2d 633) it was held that the binder was effective although an amount less than the full first premium was paid, it being "sufficient to cover the insured between the acceptance of the risk and delivery of the policy.” Here the full premium had been paid at the time of acceptance of the risk, and the fact that the defendant’s agent did not reissue a binder receipt to reflect this fact can not be allowed to work a forfeiture against the plaintiff.

Judgment reversed.

Bell, C. J., Jordan, P. J., Whitman and Evans, JJ., concur. Hall, P. J., Eberhardt, Pannell and Quillian, JJ., dissent.

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177 S.E.2d 199, 122 Ga. App. 383, 1970 Ga. App. LEXIS 873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-north-carolina-mutual-life-insurance-gactapp-1970.

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