Opinion
37406.
DECIDED OCTOBER 29, 1958. REHEARING DENIED NOVEMBER 12, 1958.
Action for commissions. Fulton Civil Court. Before Judge Camp. August 6, 1958.
Smith, Field, Doremus Ringel, Alex W. Smith, Jr., for plaintiff in error.
A. Mims Wilkinson, Jr., contra.
The judge did not err in denying the motion for new trial and the motion for a judgment notwithstanding the verdict.
DECIDED OCTOBER 29, 1958 — REHEARING DENIED NOVEMBER 12, 1958.
George O. Wright filed a suit against Bankers Fidelity Life Insurance Company for the recovery of commissions under an agency contract.
The petition alleged in part that: The named defendant is indebted to petitioner for commissions earned by petitioner, in the amount of $1,386.37, said total being a balance due petitioner from the year 1956 amounting to $187.59, and net commissions earned during the year 1957 in the amount of $1,198.78; the named defendant is indebted to petitioner for commissions earned by virtue of a written contract, a copy of which is attached hereto and made a part hereof, marked Exhibit A; petitioner has performed all of his obligations under the contract, and is entitled to the earned commissions, but the named defendant has failed and refused to pay the same to petitioner, demand having been made by him.
The defendant filed an answer in which it denied the material allegations of the petition and for further answer filed a cross-action which alleged in part that: The plaintiff was a soliciting agent of the defendant at all times in the months of September and October, 1956; as such he accepted an application for a two thousand dollar ($2,000) five-year term life insurance policy from one Evelyn C. Irvine on or about September 5, 1956; this application was not properly filled in and was returned by the president of the defendant corporation to the plaintiff with instructions that he have it properly filled in and resubmit the same; the plaintiff filled in another form on or about the 15th to the 20th of September, 1956, but did not have the applicant sign the same, and instead clipped the signature from the previous application and bradded it to the newly filled in application and resubmitted the same to the defendant company; based on this application, the defendant issued its policy No. 1405 in the face amount of two thousand ($2,000) dollars and having as its effective date October 3, 1956, to Evelyn C. Irvine; the policy as issued was delivered to Mr. Wright for delivery to the insured on or about October 5, 1956, and Mr. Wright delivered the policy to Mrs. Irvine sometime between October 4, and October 7, 1956; at the time of delivering the policy to the insured, he knew that Mrs. Irvine had been to the hospital at Emory University between the time the application had been submitted and the date of delivery of the policy, to wit, between September 20 and October 7, 1956; this information was brought to his attention by Mr. Joe Sigman, president of Walker Motor Company for which Mrs. Irvine worked; Mr. Sigman also told the plaintiff to notify the home office of Mrs. Irvine's visit to the hospital before delivering the policy; Mr. Wright failed to notify the defendant company of the fact of Mrs. Irvine's hospitalization and delivered the policy to her; Mrs. Irvine was in fact treated at Emory University Hospital on September 28, 1956, for "stomach disorder;" the policy was issued on October 3, and delivered to her between October 4 and October 7, 1956; she returned to the Emory University Hospital on or about October 22, 1956, at which time she was operated on for sarcoma of the stomach and she died on October 28, 1956, of a thrombosis following the operation; upon receipt of due proofs of death the beneficiary named in the policy was paid the face amount thereof, two thousand dollars; paragraph 4 of the contract attached to the plaintiff's petition provides: "Second party shall not deliver any policy unless the applicant is in good health and in insurable condition at the time of delivery; "because of the foregoing facts, the plaintiff violated paragraph 4 causing loss to the defendant of the face amount of the policy of $2,000 leaving a balance due the defendant of $613.63 when said $2,000 is charged against the $1,386.37 claimed by the plaintiff.
On the trial of the case the plaintiff testified in part that: He has been in the insurance business approximately thirty years and is a broker for several companies, Provident Life, United American Life, East States Life, and Progressive Life; in 1956, he dealt with a Mrs. Evelyn Irvine, and obtained her application for life insurance with the defendant, in a group; he obtained two applications from Mrs. Irvine, the first application being returned by the defendant at his request; he requested it to be returned because Mrs. Irvine was fifty-one years of age and on instructions from the defendant he as an agent had no power to pass on nonmedical above forty; therefore, he sent a letter to the defendant, asking instructions on how to handle the group of individuals because he would have had to have Mrs. Irvine examined, which he had no power to do as an agent; several of the members of the group were over forty, and in order to save time, the plaintiff went over the questions on the nonmedical part of the application, clipped the signature off and attached it to the second application; Roy Smith, president of the defendant company, returned the first application he submitted and told him it had not been properly filled in, due to the fact that the nonmedical hadn't been filled in; he took another form and wrote the reported answers and clipped Mrs. Irvine's signature off the previous paper and bradded it on, in her presence; she gave the plaintiff the answers of the medical; the application was re-executed later than September 5th, the date it bears, and before October 1st; he first learned that Mrs. Irvine had gone to Emory Hospital in Atlanta on approximately the second or third of October, when he was delivering a portion of the policies to the employees of Mr. Sigman; Mr. Sigman was talking with a gentleman across the room, and told the plaintiff that Mrs. Irvine had gone to Emory Hospital; Mr. Sigman didn't tell him what she went for and the plaintiff did not know the circumstances, whether she was sick or what she had gone for; Mr. Sigman told him to notify the home office; he was not told the reason Mrs. Irvine had gone to Emory Hospital in Atlanta; at the time he was told that, the policy had not been delivered to her; Mr. Sigman told him to notify the home office; Mr. Sigman did not say to tell them that the applicant was in the hospital, but that she had gone, that's as far as he went; he attempted to notify the home office the next morning several times, but was unable to reach either the underwriting department or Mr. Smith; he would not know whether at that time, Mrs. Irvine was, in fact, in Emory Hospital, that is, on the following day, the plaintiff doesn't know if she got back that day; when the plaintiff talked to Mr. Sigman, Mrs. Irvine was, in fact, in the hospital; he delivered the policy to Mrs. Irvine either that day or the following day, either the third, fourth, or fifth of October 1956; the paper marked D-3 is a receipt for an insurance policy signed by Mrs. Irvine, dated October 3, 1956, which she signed when he delivered the policy to her; in fact, tried to call the home office, because he knew that it was important information that they have and that it was important that the company know that its prospective insured was presently in the hospital in another city; he attempted to call the office to find out the details of the case, because he knew nothing of it, that she had gone to the hospital; he would not know when Mrs. Irvine went back to Emory Hospital; Mrs. Irvine was working when he delivered the policy, and she agreed to take her examination that day, in Mr. Joe Sigman's office, then she was in the back room, doing book work; he did not know Mrs. Irvine was even sick, and he only knew she had been to Emory Hospital in Atlanta; he made inquiries of the employees of Mr. Sigman and none of them knew anything about Mrs. Irvine going to Emory except for a check up; that's what she told him, the only information he had at all; he does not know how many days she was there on her first visit, nor does he know the day she died, except it was some time in October 1956, within the month in which he delivered the policy; he was familiar with the contract under which he was employed, and had been in the business for twenty-five years or so, and he is familiar with paragraph 4 in this particular contract; paragraph 4 prohibits the plaintiff from delivering the policy to a person not in good health and not insurable, but an agent does not know those facts, because he doesn't get the report, therefore, it's impossible for the agent to know all the health facts of an individual; he didn't have Emory's report; the policy was issued before Mrs. Irvine went to the hospital, probably; the premium check was issued approximately on October 1st in one check on the entire group, before Mrs. Irvine went to Emory Hospital, so the first premium on this insurance had been paid before Mrs. Irvine went to the hospital the first time; as to medical examinations of the ladies and men that worked for Mr. Sigman, he told each one above forty years of age that the plaintiff had no power to pass on their medical history, he would have to refer that to the home office, or they would have to take examinations; he told that to all employees over forty years of age; he sent the applications into the home office without the nonmedical being written in, and the nonmedical part is part No. 5; Mrs. Irvine was fifty-one years of age, the age shown on her application; as to his instructions about the application of employees over forty years of age, Mr. Smith instructed the plaintiff to write nonmedical; he would supervise or look after the underwriting of this particular group; Mr. Smith was president of Bankers Fidelity Life; as to why Mr. Smith didn't want a doctor to examine them, he did not give a reason; when he delivered the policy he delivered it to Mrs. Irvine personally; she was in Mr. Sigman's office working; he discussed her health condition with Mrs. Irvine at that time and told her he understood she had been to Emory Hospital and he was mighty happy to see her back and hoped she was feeling better; she said she had gone for a checkup, and he told her he had the policies; all the policies were left in Mr. Sigman's safe or were to be left there, and plaintiff turned over all the policies to be placed there, because Mr. Sigman was paying part of the premiums; Mrs. Irvine agreed to take a medical examination that day, but he had no power to have her examined because he was instructed not to have any of the employees examined.
Joe T. Sigman testified in part that: He is a Chevrolet and Oldsmobile dealer in Monroe, and has been in that business since 1936; he is a director of the defendant company, and also a member of its executive committee, and a stockholder; in September 1956, George O. Wright, the plaintiff, negotiated with a large group of Mr. Sigman's employees, for group insurance; Evelyn Irvine worked for the witness in the capacity of bookkeeper; Evelyn Irvine went into the hospital in Atlanta on the last Friday in September, about the 28th, and witness does not remember when she returned, but about the following Tuesday, which would be the 2nd; he is not positive just what day she returned; he saw George Wright while Mrs. Irvine was in Emory Hospital in Atlanta, at his place of business, and they had a discussion and it was agreed that Mr. Wright would notify the home office that she had gone to the hospital; that was while Mrs. Irvine was in the hospital the first time; he did not see Mr. Wright again with regard to this particular case before Mrs. Irvine returned or before he delivered her the policy; as to what Mrs. Irvine said was wrong with her, she told him they had made an examination and asked her to go home and stay two weeks and come back and then they would determine whether or not an operation was necessary; she went back around the middle of October, to Emory, and died in the hospital; he did not recall that he told Mr. Wright that Mrs. Irvine was at work and noticed she was passing some blood, consulted her local physician and he suggested that she go to Atlanta, or that it was an emergency; he did not recall telling George Wright that information; he did not know when the policy was received and put in his safe, and he did not see the plaintiff when the policy was delivered; Mrs. Irvine did come back to work before she returned to the hospital the second time; at that time, she did not say anything to him about having cancer; he had the welfare of the defendant company at heart at all times, and also the interest of the company, and he had the interest and welfare of the company at heart on September 5, 1956, when Mrs. Irvine made the application as he would on any date; he was also interested in her as one of his employees and so, he had the interest of both parties at heart, both Mrs. Irvine's interest and Bankers Fidelity interest; he knew everything that George Wright knew about Mrs. Irvine's condition and more besides, before George Wright knew anything; he did not specifically instruct the plaintiff to notify the company, he was interested in trying to increase the business of Banker's Fidelity Life Insurance Company; that was one of his duties as director, anything that would help the welfare of the company; and one way of doing that was by selling the policies to witness's company with Banker's Fidelity in preference to some other company; he was interested in promoting the sale of those policies and pushing them in any way he could.
The jury returned a verdict for the plaintiff and the defendant filed a motion for new trial and a motion for judgment notwithstanding the verdict. The judge denied both motions and the defendant excepts.
1. Counsel for the defendant insists that the trial judge erred in denying his motion for a judgment notwithstanding the verdict. He contends that the plaintiff violated the provision of his employment contract which provides: "Second party shall not deliver any policy unless the applicant is in good health and in insurable condition at the time of delivery."
The plaintiff testified that: Prior to the delivery of Mrs. Irvine's insurance policy Sigman informed him that she was in Emory Hospital and told him to notify the company of this fact; Sigman did not tell him why Mrs. Irvine was in the hospital; he put in a call to the insurance company's underwriting department or Mr. Smith, its president, and neither were in at the time he called; on the date he delivered the policy to Mrs. Irvine he told her he understood she had been in Emory Hospital, and he was glad to see her back and he hoped she was feeling better; she said she had gone to Emory for a checkup; he made inquiries of other employees of Mr. Sigman and none knew anything about Mrs. Irvine going to Emory Hospital except for a checkup.
This evidence was sufficient to present a jury question as to whether the plaintiff had exercised ordinary care in determining whether Mrs. Irvine was in good health at the time of delivery of the policy. The trial judge did not err in overruling the motion for a judgment notwithstanding the verdict and the general grounds of the motion for a new trial.
2. Special ground 1 of the motion for a new trial assigns error because the trial judge allowed the plaintiff to answer the following question: "Q. Mr. Wright, did you do everything that you were required to do by this contract? A. Yes, I have." Assuming but not deciding that the above answer was a conclusion, the plaintiff made it clear to the jury by other positive testimony, reciting facts, what was meant by the statement that he had complied with the contract, and the jury was not misled by the statement. Standard Growers Exchange v. Harris Son, 33 Ga. App. 195 (3) ( 125 S.E. 782). Special ground 1 is without merit.
3. Special ground 2 excepts to the following charge: "You are further charged, gentlemen, that a party to a contract may waive any provision in a contract made for his benefit by express statements or by acts or conduct, in which case the law would imply a waiver, and when waived such provision would have no effect that would not bind the other party."
While the ground complains that the issue of waiver was neither raised by the pleadings nor the evidence and was therefore error, assuming but not deciding that the charge was error, it fails to point out in what way this charge was harmful. The ground gives no reason why such a charge would be more prejudicial to the defendant than to the plaintiff. From reading the ground it cannot be determined what contract the charge refers to nor the parties to the contract. A ground of a motion for a new trial must be complete within itself, and "In order for an assignment of error to be sufficient for consideration, the plaintiff in error must show not only error but also injury." Ludwig v. J. J. Newberry Co. 78 Ga. App. 871, 877 ( 52 S.E.2d 485). See also, Dees v. State, 41 Ga. App. 321 (6) ( 152 S.E. 913); Morris v. State, 185 Ga. 67 (2) ( 194 S.E. 214). Special ground 2 is without merit.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.