Merritt vs. The Cotton States Life Insurance Company. is not released from the other conditions and limitations of the policy. The view of the plaintiff's counsel that he gets a paid up policy subject to no conditions or limitations is erroneous. If he should get a paid up policy he is as much bound by the conditions of the original policy as if he had not forfeited a right to the remainder. The company is largely interested in the continuance of the life of the insured, and if he should commit suicide after being entitled to a paid up policy for the whole or a fractional part thereof, the original policy is void and the company is not liable. 2d. "If the company agreed with Merritt to let him have thirty days within which to pay, after the time when the premiums were due, and he died, except by his own hand, within thirty days' time, the company is liable for the whole $10,000 00; if he died after the thirty days the company is not liable for the whole amount. In this case the premium was due on the 20th day of December, 1873, and it was agreed that Merritt died on the 20th day of January, 1874, the thirty days expired either at noon or midnight (it is immaterial which) of the 19th of January, 1874, and if he did not pay the premium for 1873 by noon or midnight of the 19th of January, 1874, the policy is void except as to the tenths he did pay. If Merritt paid four annual premiums and died, except by his own hand, after a failure to pay a premium past due, then his estate is entitled to recover four-tenths of the $10,000 00 after deducting the amount Merritt is due the company. And if entitled to recover, also to recover not more than twentyfive per cent. damages and reasonable attorney's fee, if the refusal and delay to pay is in bad faith. If the refusal to pay was because they did not honestly believe they were liable, then there is no bad faith and the damage and attorney's fee are not recoverable; but if the refusal to pay proceeded solely from a disposition to avoid a just claim, then the damages and attorney's fee are recoverable. 3d. "If the insured came to his death by his own hands, then the whole policy is void, asll as the amount paid, say four-tenths, as for the $10,000 00, and the company is not Merritt vs. The Cotton States Life Insurance Company. liable at all. A deranged man can take his own life so as to avoid a policy. There are different grades of derangement, and if Merritt had mind enough to know what he was doing, and intended to take his own life, and did so in pursuance of that intention, then the policy is void, and the company is not liable. But if his mind was so far gone that he was bereft entirely of reason, and in such a state of imbecility that he did not know what he was doing when he took his own life, then it cannot be said that he intended to take his life, and the policy, at least to the extent of four-tenths, is not void, and the company is liable, as stated before. The law presumes, when a man dies, that he dies a natural death, and it is incumbent on the company to show that he took his own life. If Merritt made false statements in his application for a policy as to previous derangement, the policy is void. It is for you to say how much credit you will attach to his statement to that effect, as contained in his memorandum book, if he was actually deranged at the time the statements in the book were made." The jury found for the plaintiff $2,734 52, twenty-five per cent. damages, and $1,000 00 attorney's fee. The defendant moved for a new trial upon the following, among other grounds: 1st. Because the court erred in finding in favor of the jurisdiction of the superior court of Sumter county. 2d. Because the court erred in overruling the motion for a non-suit upon each of the grounds stated. 3d. Because the court erred in charging as set forth in the 3d subdivision of his charge. 4th. Because the verdict was contrary to the charge of the court. 5th. Because the verdict was contrary to the law and the evidence. The court ordered a new trial upon the ground that the jury found contrary to his charge, and because the verdict wast contrary to the law and the evidence. To this ruling the plaintiff excepted. Merritt vs. The Cotton States Life Insurance Company. The facts as to the objection to the time when the motion for a new trial was made, are reported in the decision. S. C. ELAM; HAWKINS & HAWKINS, for plaintiff in error. COOK & CRISP, for defendant. WARNER, Chief Justice. This was an action brought by the plaintiff against the defendant on a life insurance policy. On the trial of the case, the jury, under the charge of the court, found a verdict in favor of the plaintiff for $2,734 52, with twenty-five per cent. damages on that amount, and $1,000 00 for attorney's fee. A motion was made for a new trial on the several grounds stated therein, which was granted by the court on eight of the grounds taken in the motion, and the defendant insists that the court should have granted the new trial on several other grounds stated in the motion, which the court overruled. 1. When the motion for a new trial came on to be heard, the plaintiff made a motion to dismiss it, on the ground that the motion for a new trial was not made at the term of the court at which the trial was had, but was made in vacation. It appears from the record that at the term of the court at which the trial was had, the following order was passed: "Upon consent of counsel in open court, ordered that defendant's counsel have ten days from the adjournment of this court to make out, perfect, and have filed in the clerk's office, an application for a new trial with original brief of evidence ordered to be filed. Such motion to be heard at chambers by the judge, as if in term, within twenty days, with the right of exceptions to both parties. Plaintiff also has the same time and terms, with like right of exceptions." The court adjourned on the 26th day of January, 1875. On the 1st day of February thereafter, the judge, at chambers, granted a rule nisi for a new trial, and suspended the verdict and judgment until further order, and set the case for a hearing on the 5th of Merritt vs. The Cotton States Life Insurance Company. February. On the 2d of February the plaintiff acknowledged service on the defendant's motion for a new trial with a protest that a motion for a new trial and supersedeas could not be made, filed, and ordered in vacation, and agreed to a brief of the evidence with a similar protest. The judge overruled the motion to dismiss the motion for a new trial, and the plaintiff excepted, and assigned the same as error. There being only two judges presiding, and being divided in opinion as to the plaintiff's motion to dismiss the defendant's motion for a new trial, the judgment of the court below on the question of dismissal stands affirmed. 2. There was no error in the ruling of the court at the trial as to its jurisdiction of the defendant in the county of Sumter under the evidence in the record, as provided by the 3408th and 3409th sections of the Code. The constitutional power of the general assembly to enact these two sections of the Code, was recognized and settled by this court in Davis vs. The Central Railroad and Banking Company, 17 Georgia Reports, 323. 3. There was no error in overruling the defendant's motion for a non-suit on either of the three grounds taken in the motion therefor. There being no plea of ne unques administrator, the plaintiff was not required to prove that he was administrator at the trial. 4. The absolute refusal of the defendant to pay, was a waiver of the preliminaries required by the policy as to time of payment: Code, section 2813. The manner and circumstances of the death of the insured under the evidence, was a question to be submitted to the jury. 5. There was no error in the charge of the court that if the plaintiff had obtained a paid up policy, he was as much bound by the terms and conditions of the original policy, as if he had not forfeited his right to the remainder of the policy. 6. If the insured died by his own hand, then the policy is void, unless it be clearly shown that at the time the act was done, his mental condition was such as to render him incapa Hughes vs. The Piedmont, etc., Insurance Company. ble of distinguishing right from wrong to such an extent as to render him legally and morally irresponsible for his acts, and conduct. The fact that the insured committed suicide is not of itself evidence of insanity. 7. In view of the evidence contained in the record, and of the law applicable thereto, we will not interfere to control the discretion of the court in granting a new trial in this case, the more especially as there is no evidence which would have authorized the jury to find twenty-five per cent. damages on the amount recovered, and $1,000 00 for attorney's fees on the ground that the refusal of the defendant to pay the plaintiff's claim was in bad faith, as provided by the 2850th section of the Code. Let the judgment of the court below be affirmed. WILLIAM H. HUGHES, plaintiff in error, vs. THE Piedmont AND ARLINGTON LIFE INSURANCE COMPANY, defendant in error. A life policy with participation in profits, contained this stipulation: "If after the regular payment of not less than two annual premiums, an ordinary life policy should cease by the non-payment of premiums, then, upon written application of the insured within thirty days from the time of such ceasing (exclusive of thirty days grace,) a new policy will be issued for the amount of cash premiums in even hundreds of dollars received by said company;" five regular payments were made, partly in cash and partly in notes; the cash amounted to $706 50 being more than the amount of two annual premiums; there was due on notes $568 50. Held, that on a bill for specific performance, the complainant is entitled to a paid up policy for $700 00. Insurance. Policy. Before Judge JAMES JOHNSON. Muscogee Superior Court. November Term, 1874. Reported in the decision. R. J. MOSES, for plaintiff in error. INGRAM & CRAWFORD, for defendant. 55 111 63 205 |