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Action on life policy. Before Judge Boykin. Carroll Superior Court. June 24, 1953.
1. The blank note signed and delivered by the insured to the defendant's general agent without any understanding or agreement between them as to the amount the note was to be filled in for, or as to the due date to be inserted therein, was not a binding and enforceable obligation of the insured, and cannot be asserted by the beneficiary as having constituted the payment of a premium on the policy of insurance in question; and proof of the payment of such a premium being essential to the maintenance of the action on the policy, evidence as to the signing and delivery of the note, under the circumstances aforesaid, was not sufficient to authorize a recovery under the policy.
2. The evidence in this case did not establish a course of dealing between the insurance company and the insured as to the acceptance of premium payments contrary to the provisions of the policy.
On May 3, 1949, Progressive Life Insurance Company issued a life-insurance policy to Melton Eugene Reeves, insuring his life for $2,500. The beneficiaries named in the policy were Mary F. Reeves and Miss Olivia E. Reeves. The insured was drowned on June 4, 1950; the insurance company denied liability, and the beneficiaries brought suit on the policy. During the pendency of the litigation Olivia E. Reeves died; Mrs. Mary S. Reeves qualified as her administratrix, and carried on the suit in her own right and as the administratrix of Miss Olivia E. Reeves. The suit resulted in a verdict for Mrs. Reeves, and the insurance company excepted, bringing the case here for review.
The petition alleged that a premium necessary to keep the policy in force matured May 3, 1950, but could be paid, agreeably to the tends of the policy, within the grace period of thirty days thereafter; that the insurance company s general agent, authorized to accept a note for the premium, accepted a promissory note in blank as to date, due date, amount, and payee, with the understanding between the agent and the insured that he would fill in the note for an amount sufficient to pay she premium mentioned and the next two premiums that would thereafter mature, and accept it on the part of the insurance company in payment of the premiums mentioned. On a previous appearance of this case this court held (85 Ga. App. 576, 69 S. E. 2d 882) that the allegations of the petition were sufficient to show the authority of the agent to accept the note; that the blank note signed by the insured and delivered to the agent with the agreement that it be filled in by him and accepted as payment for the premium due on June 3, 1950, and the next two premiums that would become due thereafter, constituted an acceptance of the note in payment of the premiums so as to prevent the insurance policy from lapsing on June 3, 1950, which was just one day before the insured was alleged to have tragically died.
1. Upon the trial of the case, the evidence did not show that any blank note was given by Mr. Reeves, the insured to Percy S. Smith, the general agent of the defendant insurance company with instructions to fill it in for the amount sufficient to pay the next three ensuing premiums, including that due May 3, 1950, the payment of which would have prevented the policy from lapsing prior to Mr. Reeves' death on June 4, 1950.
The agent, Mr. Smith, testified that the note was in his possession to cover the premium payment due May 3, 1950, but, in view of his explanation of the transaction, his testimony and that of his daughter and employee established without dispute that the blank in the form of a promissory note was delivered to her under the following circumstances: The note was signed by Mr. Reeves, and was blank as to amount, date, time of maturity, and payee. The insured never at any time gave the general agent, Smith, instructions or authority to fill in any of the blanks contained in the note. The only communication that was had between them was through the medium of messages carried between them by Mr. Smith's daughter and employee, Miss Sylvia Smith. The blank note was handed by the insured to Miss Smith with the understanding that, if the insured decided to keep the policy in force, he would see Mr. Smith and arrange to do so. Mr. Reeves, at the time he handed the note to Miss Smith, told her that he had not decided whether he would keep or drop the insurance, or whether he would carry it for the same amount if he did keep it, or whether he would carry it for a small amount or whether, if he decided to carry the insurance, he would arrange with her father to pay the premiums on a quarterly or yearly basis. In these circumstances, the paper in the form of a note was not effective as creating an obligation of the insured to the defendant or to its general agent, Smith, for the reason that the paper was never delivered for the purpose of giving it effect as a note or other written obligation to pay money. Since neither party had assented to all the terms and conditions of the note, the contract was incomplete and not binding and enforceable. Code 20-108. It follows that the premium due May 3, 1950, was not paid by the note.
2. The plaintiff contended without pleading, that the insurance company by reason of a course of dealing with the insured, lulled the insured into confidence that the premium due May 3, 1950, would be accepted after it was past due and after the days of grace in which it could be paid agreeably to the terms of the policy had expired, and that the insurance company was thereby estopped to insist upon a forfeiture of the policy and of the beneficiaries' right thereunder. The policy provided that a note might be taken in payment of premiums; for the first quarterly premium the insurance company accepted a note signed by the insured, made payable to the general agent, Smith, and secured by Smith's endorsement. This was the only instance where a premium was carried past its due date. Since on that occasion no extension in which to pay premiums except as provided by the policy was granted the insured on his own credit, and none on any other occasion, the insurance company had done nothing to lead him to think that any such indulgence would be granted him. Neither would the acceptance of one premium after the days of grace, ordinarily constitute such course of dealing as in Davenport v. Metropolitan Life Ins. Co., 55 Ga. App. 553 (190 S. E. 872).
The court erred in denying the notion for a new trial.
Judgment reversed. Felton, C. J., and Nichols, J., concur.
O. W. Roberts, Jr., Robert D. Tisinger, contra.
Boykin & Boykin, for plaintiff in error.
Saturday May 23 03:47 EDT

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