DocketNumber: 25923
Citation Numbers: 55 Ga. App. 346
Judges: Guerry, MacIntyre
Filed Date: 3/3/1937
Status: Precedential
Modified Date: 1/12/2023
On February 9, 1920, the American National Insurance Company issued a policy of insurance on the life of Allen Parker. Bosa Parker, sister of the insured, and beneficiary named in the policy, brought the present suit in September, 1935, to recover the face amount of the policy. To show the death of the insured, the plaintiff relied on the presumption of death arising from seven years absence of one from his accustomed place of abode, unheard from by those who would be most likely to hear. No witness produced at the trial testified that he had seen the insured since November, 1920. The plaintiff in error contends that the evidence produced by the plaintiff is insufficient to establish the presumption of death, for the reason that it is not shown that it does not appear that “there has been an unsuccessful effort to find the insured by search and diligent inquiry at Cleveland, Ohio,” the insured’s last-known residence. The plaintiff testified that she last saw the insured in September, 1920, and last heard from him in November, 1920; that he was married and had one daughter, Irene Parker, “who has been in my care and custody since she was two years old, and she is now eighteen. Up to November, 1920, I heard from my brother once a week, because he contributed every week to the support of this child; he sent ten dollars every week until the fall of 1920. The last .time I heard from my brother he was in Cleveland, Ohio.” Also, that the last time she heard, Allen Parker’s wife was.dead; and that she wrote to Henry Matthews in Cleveland, Ohio, regarding the insured. Jennie Parker, mother of insured, testified that she last heard from the insured in 1920. “’Since 1920 I have wrote everywhere and tried to locate him. I have not heard a word since then.” Henry Howard testified that he lived in Cleveland, Ohio, about two months in 1920; that he had known the insured all of his life; that during this time he saw the insured three or four times; that he had not seen him since 1920; that he moved to Cleveland in 1922; and “When I went back to Cleveland I inquired about Allen Parker; I inquired of my nephew. The last I heard anything
In Rudulph v. Brown, 150 Ga. 147 (103 S. E. 251), it was said: “In order to raise a presumption of the death of a person who moves from this State to a named point in another State, inquiry must be made at the last known domicile of the absentee at which he resided in the other State; and it must be shown, by those who would be most likely to hear from him, that he was absent and unheard of in the last place of residence for seven years.” In the present case the plaintiff, ’ a sister of the insured, and one who certainly would have been expected to hear from him had he been alive, especially since she was caring for and had in her custody his only child, testified that she had not seen or heard from him since 1920. The mother of the insured also testified that she had not heard from him since 1920, and that “I have wrote everywhere and tried to locate him.” This statement was not challenged, nor did counsel on cross-examination inquire of the witness where she had written and to whom. The jury were at liberty to infer that she had written to persons in 'Cleveland who knew her son and would have been most likely to have heard from him had he been there. Two witnesses who lived in Cleveland, and another who lived there for a time, testified that although be
The policy provided that the company would pay to the beneficiary, on receipt "of due proof of the death of the insured made in the manner, to the extent, and upon the blanks required herein,' the amount of the policy. The defendant contends that there was no evidence showing a compliance with this provision. However, the plaintiff testified that she first wrote to the defendant concerning her claim on her policy in August, 1934. On August 4, 1934, H. W. Gray, assistant claim adjuster of the defendant company, wrote to her: "We would suggest that you consult our local superintendent, Mr. Ben T. Wages, 101 Marietta St. Building, who will be glad to advise you concerning the policy." On August 25, 1934, Ben T. Wages, local superintendent, wrote to her: "We have been advised by the home office that before considering this case further it would be necessary for you to submit a supplementary affidavit setting out the approximate date the insured was last seen or heard of in Atlanta, and also setting out the circumstances under which he left." She testified that she submitted the affidavit requested by the letter of Mr. Wages. The company retained the affidavit and her statement of her claim, without making objection thereto. We are not 'prepared to hold that the evidence did not warrant a finding that the defendant had waived a strict compliance with the provision* for the furnishing of proofs of loss on forms to be furnished by it. This provision could be waived by conduct inconsistent with an intention to enforce a strict compliance with the condition, by which the insured was led to believe that the insurer did not intend to require such compliance. Corporation of Royal Exchange Assurance v. Franklin, 158 Ga. 644 (124 S. E. 172, 38 A. L. R. 626). There is no doubt that the company had notice of the claim of the plaintiff under the policy, and through its local superintendent it requested additional proof of her claim. Having requested this form of proof without notifying her that it intended to rely on the provision of the policy that she submit due proofs of loss on blanks furnished by them, we are of the opinion that the company waived a strict compliance with this provision.
Complaint is made that the court improperly admitted in evidence certain depositions which had been transmitted to the clerk and by him opened through mistake, the envelope containing the depositions not having endorsed thereon the name and number of the case. The Code, § 38-2504, declares that “all exceptions to the execution and return of commissions shall be made in writing, and notice thereof shall be given to the opposite party before the case is submitted to the jury: Provided, the same shall have been in the clerk’s office for 24 hours prior to the trial.” Galceran v. Noble, 66 Ga. 367; Langford v. Driver, 70 Ga. 588 (3). The object of requiring such notice is that the opposite party may move to continue, to have interrogatories re-executed, and that he may act advisedly and without surprise. It not appearing that proper objection was made, the court did not err in refusing to exclude the depositions. The certificate of the commissioner stated “The foregoing evidence of the witness was taken down under oath after said witness had been first duly
Judgment affirmed,.