Home Friendly Society v. Berry , 94 Ga. 606 ( 1894 )

The Home Friendly Society, of Baltimore, Md., issued three certificates of membership to Stephen Berry: the first for $148, dated May 27,1889; the second for $270, dated October 21,1889; the third for $92, dated December 15, 1890. Each of them bore a different number. Among the conditions therein were, that the certificate was issued in consideration of the representations and agreement in the application therefor, which application was made a part of the contract; that if any of the statements made in the application should be found untrue, or if the representations upon which the certificate was granted were not true, or if the conditions of the certificate were not in all respects observed, the certificate should be void; and that no agent had authority to make, alter or discharge contracts. The third of the certificates contained the additional condition, that it should be void if the member should without written permission engage in certain occupations, “or while there is in force upon the life of the insured a certificate previously issued by this society, unless the certificate first'issued contains an indorsement signed by the president or secretary, authorizing this certificate to be in force at the same time.” No such indorsement appeared upon the first or second certificate. Stephen Berry died on November 14, 1891. His wife, the beneficiary named in the certificates, brought suit upon them; and defendant pleaded, among other things, that in the applications for the policies the applicant represented and warranted that he had no other insurance in this or any other company, when in fact he held two policies of defendant at the time the third was issued, and one at the time of issuing the second; and that defendant had no notice that any of said representations were false, and not until he died did it know that he was holding all of said policies, but up to that time believed that each of them was held by separate and distinct persons, and if it had known the same person held all of them it would have cancelled them, and this fact was concealed in •order to defraud it, which made the policies void. There was also a plea of false representation of age of applicant. In evidence appeared the applications for membership, dated respectively May 10 and October 12,1889, ■and December 15, 1890. They stated, among other things, that at the time of application the applicant was not a member of defendant or any other beneficial society. The jury found for the plaintiff', and defendant’s motion for a new tidal was overruled. The motion contained the general grounds, and alleged that the court erred in the following instructions to the jury:

“ Stephen Berry represented in those three applications that he had no other insurance or life membership in defendant’s company. If this was a material misrepresentation, in the sense I have charged, it would avoid the second and third policy, unless the plaintiff shows such conduct on the part of the company that will waive 'this representation.

“If the defendant knew the identity of Stephen Berry in each of the three policies and continued to accept premiums from him after such knowledge was had, they ■should be held to have waived insistence on the truth of the representation as to other insurance with them. In-Heed, it would be a fraud upon the assured in the company, after the knowledge that he was, in point of fact, '■the same Berry insured with them three times, to go on collecting premiums from Mm from week to week and from year to year, and then set up that the policies were void bn that ground. And in determining whether the company knew it or not, you are at liberty to consider any knowledge which the evidence discloses.the defendant’s agents in Georgia had on that subject, provided the knowledge of such agents was acquired in the course of defendant’s business in reference to such applications and policies and within the scope of their employment; and you may look also to the recitals contained on the face of the applications themselves. If, however, the company did not know that the Stephen Berry of the three policies was the same Stephen, and in good faith went on collecting premiums on all three of them, believing the assured was a different individual in each; and you further believe from the evidence that the representation that there was no other insurance with them, changed the nature, character or extent of the risk, the company would not be bound by the last two policies, and you would disallow plaintiff’s claim fro tanto.

Dorsey, Brewster & Howell, for plaintiff in error. Westmoreland & Austin, contra.

“ There is no necessary disparity in the statement of Stephen Berry’s first and second applications; there is a disparity of several years between the ages stated in the second and third applications.”