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Lawskills.com Georgia Caselaw
PROGRESSIVE FIRE INSURANCE COMPANY v. BRINSON.
34649.
Action on fire insurance policy. Before Judge Lilly. Thomas Superior Court. March 4, 1953.
FELTON, J.
Under the facts alleged in the petition, the policy issued by the plaintiff in error was in effect on the date the loss sued for occurred, even though the policy bore a subsequent date; therefore the court did not err in overruling the general demurrer to the petition.
Mrs. Archie Brinson sued Progressive Fire Insurance Company to recover for a loss which had been sustained by the plaintiff by reason of fire, and which was allegedly covered by a policy of insurance issued by the defendant upon the plaintiff's property, and to recover a 25% penalty and reasonable attorney's fees. The amended petition alleged in substance: On October 3, 1952, the defendant, through its duly authorized agent, Emory Greene, solicited from the plaintiff an application for a policy of fire insurance, under the terms of which the defendant was to issue a policy insuring the plaintiff, in the sum of $1,000, against loss by fire of her household furniture and personal effects. At the time the defendant through its agent, Emory Greene, received the plaintiff's application, the plaintiff paid two weekly premiums in the total amount of ninety cents. The plaintiff was assured by the defendant's agent that, upon payment of said premium, she was immediately protected by the defendant's policy of fire insurance. On October 25, 1952, Prentice E. Forrester, superintendent and general agent for the defendant, delivered to the plaintiff a policy of fire insurance, the material portions of which are set out as an exhibit to this petition. At the time the said Prentice E. Forrester delivered said policy of fire insurance, he solicited and received from the plaintiff an additional premium of ninety cents and signed the plaintiff's receipt book showing the receipt of four weekly premiums of forty-five cents each, and insuring the plaintiff as aforesaid through the week of November 3, 1952. Such action on the part of Prentice E. Forrester was done in his capacity as superintendent and general agent for the defendant. On October 26, 1952, all of the furniture and personal effects of the plaintiff were destroyed by a hostile fire, the cause of which, to the best knowledge of the petitioner, was the explosion of a heater. The property so destroyed was of a value of more than $1,500 and was the subject matter of the policy of fire insurance issued and delivered by the defendant; and the petitioner is entitled to the face amount of said policy, to wit, $1,000. Within two or three days after the said loss by fire, the plaintiff notified Prentice E. Forrester of her loss and was informed by said Forrester that he would communicate all of the facts to the defendant company. A week or ten days later, Forrester notified the plaintiff, through her attorneys, that the company was refusing to recognize any liability to the plaintiff for the damages she sustained by reason of the fire. Thereafter, on November 12, 1952, and with full knowledge of the facts herein above alleged, the defendant requested the plaintiff to execute and submit a proof of loss to the defendant's claim department. The plaintiff executed and submitted the required proof of loss to the defendant on November 25, 1952, and on December 22, 1952, the defendant notified the plaintiff, through her attorneys, that it recognized no liability to the plaintiff in connection with the policy it issued. The defendant has accepted and retained the premiums paid by the plaintiff, as hereinbefore alleged. At the time the plaintiff made application for insurance and paid the defendant a total of ninety cents in premiums, the plaintiff received a receipt which is set forth as follows: "Progressive Fire Insurance Company. Applicant's Deposit Receipt. $.90, 10-3-1952. Deposited by Mrs. Archie Brinson. The above amount is accepted as a deposit only in making application for Fire Insurance to the Progressive Fire Insurance Company on this date. If the application is accepted and a policy issued, this amount will be applied toward the weekly premiums thereon. If application is rejected, the amount will be returned to the applicant. No obligation is incurred by said Company by reason of this deposit, unless and until a policy is issued upon said application, and delivered to said applicant." The date of issuance of the policy as shown there on was October 27, 1952.
The defendant's general demurrer to the amended petition was overruled and it excepts.
The loss sued for occurred on October 26, 1952. The policy sued on was dated October 27, 1952. It is contended by the defendant insurance company that, because the policy was dated the 27th, it was not in effect on the 26th. The plaintiff contends that, because of the course of dealings between the parties, the policy became effective before the date set out in the policy and was in effect at the time of the loss. We agree with the plaintiff's contentions. On October 3, 1952, the defendant accepted from the plaintiff an application for the policy sued on and two weekly premiums in the total sum of ninety cents. On October 25, 1952, "Prentice E. Forrester delivered said policy of fire insurance [and] he solicited and received from the plaintiff an additional premium of ninety cents and signed the plaintiff's receipt book showing the receipt of four weekly premiums of forty-five cents each, and insuring the plaintiff as aforesaid through the week of November 3, 1952." (Emphasis supplied.)
It was held in Life & Casualty Ins. Co. of Tenn. v. Palmer, 48 Ga. App. 380, 381 (2) (172 S. E. 823), that, where a receipt is given to an applicant for insurance, by a local agent of a life insurance company, for the first premium upon a policy of life insurance, and the money is forwarded to the home office of the company and there accepted as the first payment upon the policy, and the policy is issued and forwarded to the local agent for delivery to the insured, the contract of insurance becomes effective on the acceptance of the premium by the company and the issuance of the policy, notwithstanding the policy may, according to its terms, take effect at a later date.
Only a general demurrer was filed in the instant case. Properly construing the petition as against a general demurrer, it alleges that on October 25, 1952, Forrester, the defendant's general agent, delivered the policy issued by the defendant and collected two weekly premiums thereon, applying those premiums and the premiums previously received to the period from October 3, 1952, to November 3, 1952. Nothing to the contrary being shown, Forrester, a general agent, had authority to receive and so apply the premiums and deliver the policy. Story on Agency, 317; New York Life Ins. Co. v. Rhodes, 4 Ga. App. 25, 29 (60 S. E. 828). Construing the petition that the defendant received premiums for and applied them to the period from October 3 to November 3, 1952, and delivered the policy on the date it so applied the premiums, the policy was in effect on October 26, 1952, the date of the loss, regardless of the date set our in the policy.
A reading of the cases of Fowler v. Preferred Accident Ins. Co., 100 Ga. 330 (28 S. E. 398), Boswell v. Gulf Life Ins. Co., 197 Ga. 269 (29 S. E. 2d 71), and Penn Mutual Life Ins. Co. v. Blount, 165 Ga. 193 (140 S. E. 496), will show that those cases are not applicable to the facts here alleged.
The petition alleged a good cause of action as against a general demurrer, and the court did not err in overruling such demurrer.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.
Titus, Altman & Johnson, contra.
Forester & Calhoun, for plaintiff in error.
DECIDED JUNE 19, 1953 -- REHEARING DENIED JULY 2, 1953.
Saturday May 23 04:22 EDT


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