Petition for Writ of Certiorari — Burks v. Colonial Life & Accident Insurance

Supreme Court brief1952

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IN THE SUPREME COURT OF THE

UNITED STATES

TERM, 1952

MRS. PAULINE R. BURKS

Petitioner

q v5.

» COLONIAL LIFE & ACCIDENT INSURANCE

: COMPANY OF COLUMBIA, SOUTH

CAROLINA

Respondent

PETITION FOR WRIT OF CERTIORARI

Bs the Honorable Chief Jusice and dhe Associate Justlons

3 of the Supreme Court of the United States:

: Mrs. Pauline R. Burks respectfully petitions that writ

Mf certiorari may issue to the United States Court of Ap-

leals for the Fifth Circuit to bring up the record from and

jo Teview the judgment of that court in the case of Mrs.

Pauline R. Burks, Appellant, vs. Colonial Life & Accident

urance Company of Columbia, South Carolina, Appel-

, No. 13713, and that said judgment may be reviewed

i reversed; and in support of this petition respectfully

STATEMENT OF JURISDICTION AND

oe ee QUESTION INVOLVED

E ‘This is a civil case and this Court has jurisdiction to

= in this petition and grant the writ of certiorari to

he United States Court of Appeals for the Fifth Circuit

under Section 1254 (1), Title 28, United States Code An-

(1)

- The judgment sought to be reviewed and reversed is

dated November $0, 1951, and this petition is submitted

within the nimety-day period prescribed by Section 2101

(c), Title 28, United States Code Annotated.

The District Court granted the motion of the insurance

company for summary judgment on all four counts of the

petition, and the Circuit Court of Appeals affirmed the

District Court. Both of such opinions are set forth at pages

138-145 of the certified Record from the Fifth Circuit

Court of Appeals which accompanies this petition.

The law of the State of Georgia prevails in this case. If

there is no Georgia court decision or statutory law con-

trolling the question, then the general law, as determined

by the Federal courts, controls the issues of the case.

With respect to Count III of the petition, both the Dis-

trict Court and the Circuit Court of Appeals rendered a

decision without Georgia precedent, statutory or otherwise,

and undoubtedly contrary to how the courts of Georgia

would decide the issues in the light of general Georgia law.

Neither Federal court cited or applied any Georgia law

in the decisions on this count. The decision of the Cir-

cuit Court of Appeals for the Fifth Circuit is in direct con-

flict with the following decisions of the Circuit Courts of

Appeals for the Sixth and Seventh Circuits on the same

question: |

American Life Ins. Co. of Alabama vs. Hutcheson,

109 F, (2d) 424 (6th Cir.) (Certiorari denied 310

U.S. 625; 84. L. Ed. 1397

Behnke et al. vs. Standard Accident Ins. Co. of

Detroit, Michigan, 41 F. (2d) 696 (7th Circuit)

The rule of law controlling this particular count is not »

embraced in the statutory law of Georgia and has never

“Gest pewed upon by the cour of George so far as is ascer-

“tainable, and, therefore, the general law controls this count

- of the petition.

_ This is not a case where there is a conflict in the deci-

“tions of the Circuit Courts of Appeals because of a con-

flict in the law of the respective states involved in the dif-

ferent circuits. There is no Georgia law sustaining the de-

: -tision of the Fifth Circuit Court of Appeals with respect to

Count III, although there is some Georgia law indicating

to the contrary of such decision.

Moreover, the decision of the Circuit Court of Appeals

for the Fifth Circuit with respect to the other three counts

of the petition, decided important questions of local law

applicable in Georgia, undoubtedly, we believe, in a man-

ner in conflict with applicable Georgia court decisions.

To secure uniformity of decisions among the Circuit

Courts of Appeals, certiorari was granted by this Court in:

Magnum Import Co. vs. Coty, 262 U.S. 159, 163;

67 L. Ed. 922, 924

Ruhlin vs. New York Life Ins, Co., 304 U.S. 202,

82 L. Ed. 1290

This Court has never passed upon the question of law

presented in Count III of the petition so far as can be

ascertained. However, this Court did deny certiorari in

the case of American Life Ins. Co. of Alabama vs..Hutche-

_ son, supra, in which the decision is in direct conflict with

the decision of the Circuit Court of Appeals for the Fifth

Circuit in this case.

The Fifth Circuit Court of Appeals in this case decided

_ important questions of local Georgia law in a manner, we

believe, in conflict with applicable local Georgia decisions,

justifying the grant of certiorari as contemplated by Rule

$8, Par. 5 (b) of this Court.

In addition to the foregoing, the questions involved are

substantial, in that this case involves a life and accident

insurance company of the State of South Carolina carrying

on interstate commerce in the State of Georgia, by and

through its general agent for the State of Georgia, in insur-

ing the lives of persons in the State of Georgia. The ques-

tions involved. and their correct decision by this Court are

of wide public interest, and affect property rights through- ©

out the United States.

SUMMARY STATEMENT OF THE MATTER

INVOLVED

Petitioner, a resident of the State of Georgia, initially

brought her petition in three counts in the District Court

against Colonial Life & Accident Insurance Company, a

resident of the State of South Carolina.

Because the case terminated solely on the pleadings and

supporting affidavits, on motion for summary judgment,

it will be necessary to set out the allegations of the complaint

in some detail. .

(a)

Count One

This count is based on the right of recovery by plaintiff

on the equitable remedy of specific performa:'<e.

In this count petitioner alleges that one G. C. Pool, of

Macon, Bibb County, Georgia, was the general agent of

the defendant in the State of Georgia, and that all during

the times complained of he was acting within the scope of

his employment and in furtherance of and the prosecution

of the defendant’s business; that the said Pool had full and }

actual authority, as well as apparent authority, to perform

all the acts, statements and agreements set out in the com-

plaint by and on behalf of the defendant.

That on November 15, 1949, the said Pool, acting as

aforesaid, approached David Halsey Burks, the deceased

husband of petitioner, and proposed to the deceased that

he buy an accident policy on his life known as “Executive

and Professional Accident Insurance,” a copy of the same

being attached to the complaint as Exhibit A (R., pp. 36

and 49. The policy actually attached did not have the

blanks filled in, as page 49 of the Record discloses) ; that

on the same day Pool explained to the deceased that he

could pay the premiums for the policy either annually, for

$116, or monthly, at the rate of $10 per month; and that

the monthly premium payment plan of the company was

as follows: The Company had printed, and Pool exhibited

the same to the deceased, checks entitled “Premium Pay-

ment. “The Executive and Professional Accident Policy,’ ”

in the amount of $10 each, payable to the defendant com-

pany, with the only blanks at all being the date thereof,

the name and address of the drawee bank and the signature

of the drawer.

That on November 15, 1949, the said deceased accepted

the proposal of the said Pool and accepted the monthly plan

of premium payment and signed twelve of the $10 checks

and gave them to the said Pool, said checks being drawn

on the joint bank account and joint funds of the deceased

and petitioner and both their names being signed thereto.

A copy of such a check, executed by petitioner and the de-

ceased and payable to the defendant, is attached to the com-

plaint as Exhibit B. (R., p. 37.)

One of the checks was then and there, on November 15,

1949, filled out and completed by the said Pool, as follows:

Dated November 15, 1949, drawn on the Commercial

Bank & Trust Company, Griffin, Georgia, the name of the _

bank where petitioner and deceased had their joint funds;

and that the said Pool agreed then and there that said check

so filled out was payment of the premium on said policy for —

the period November 15, 1949, to December 15, 1949. |

That on said date the form attached to the complaint and _

marked Exhibit C (R., p. $8) was filled out by the said _

Pool and signed by the deceased at the request of the said

Pool, who stated that the same was a formality required by

the defendant company. That said form attached as

Exhibit C was entitled “Application for Accident Insur- —

ance Policy,” was not attached to the policy that was issued |

on the life of the deceased; and if a policy on the life of the —

deceased had not been executed and issued, then said form

would not have been attached to said policy, had it been

issued, and therefore, under the law of Georgia, nothing —

in the “application” could be used as a defense to the ©

suit; neither was any application attached to the type policy —

herein involved that was issued on the life of any other

assured by the defendant; and it was not the policy, prac-

tice or custom of the defendant to attach the same to any

such policy of any assured; and, therefore, neither the

plaintiff nor her deceased husband is bound by any recitals

contained in said form, because it was not, nor would have

been, attached to the policy of insurance issued or to be

issued on the life of the deceased; and, therefore, was not a

part of the policy.

That all of said twelve checks, signed by both the peti-

tioner and the deceased, were forwarded to the home office

of the defendant in Columbia, South Carolina, and received

by the defendant on or about November 18, 1949, and

accepted and retained by the defendant.

That after the delivery to the said Pool of the said twelve

checks, signed jointly by petitioner and the deceased, the

_ remaining eleven were filled out by the defendant and dated

monthly, beginning with December 15, 1949, and ending

with October 15, 1950, and with the bank of deceased and

petitioner filled in, that is, the Commercial Bank & Trust

Company, Griffin, Georgia.

That petitioner is the widow of the deceased and was

named as beneficiary in said policy.

That on November 15, 1949, the said Pool advised the

deceased, at the time of acceptance of said proposal of insur-

ance, that if the home office cashed his check dated No-

vember 15, 1949, it would mean the company had accepted

him and his policy would be forthcoming and would be

dated November 15, 1949; and petitioner alleges that this

was the general practice and custom of the defendant.

That on November 26, 1949, the defendant company, at

its home office in Columbia, South Carolina, unqualifiedly

and unconditionally, and without reservation or restriction

thereon, cashed said check dated November 15, 1949, by de-

posting the same into the general funds and into the gen-

eral treasury of the defendant company; that said check

was then transmitted in the usual course of banking busi-

ness, cleared, perforated and paid, and so marked by the

Commercial Bank & Trust Company of Griffin, Georgia,

on November 30, 1949; and the petitioner’s and the de-

ceased’s account and funds therein were reduced according-

ly on such date.

Prior to his death the deceased ascertained that said

check had been so cashed and paid, and was thereby assured

that he was covered and protected by said policy.

That the deceased contemplated obtaining other insur-

ance to protect his life against the risk covered by said poli-

ty of the defendant in the event he was not accepted by

defendant, but when he ascertained that defendant had

accepted him by cashing his said check, he was assured

that he was covered against such a risk and forewent ob. -

taining other insurance.

That the defendant, in addition to cashing said check

of November 15, 1949, as aforesaid, accepted the other

eleven checks as payment of said premium in advance, for

the period December 15, 1949, to and including November

14, 1950.

That the deceased was killed on the evening of Decem-

ber 3, 1949, by accidental means, within the meaning of

his policy and under Section 2 thereof and, therefore, the

company is liable for the amount set forth therein, to-wit:

$12,500.

That it was the intention and agreement of the parties

that the said policy when issued would take effect as of

November 15, 1949.

That by accepting said twelve checks and cashing the

one dated November 15, 1949, the defendant company.

as stated and agreed by the said Pool, confirmed and rati-

fied the agreement of the said Pool, and, as a matter of

law as well as a matter of fact, accepted the deceased for such

policy as set forth in Exhibit A, and became obligated to

issue and deliver to said deceased such a policy.

That, as a matter of law, in the absence of any agreement

or intention, the law would imply the insurance policy,

when issued, to be effective on November 26, 1949, the

date defendant cashed said check, as aforesaid; and that

said policy and contract of insurance was in effect and exist-

ing on December 3, 1949, when the deceased met his acci-

dental death, by the intention of the parties and as a matter

of law.

That the deceased had done and accomplished all that

was required of him to do in the premises to effectuate said

insurance; and that the defendant company had in fact

executed and issued the policy prior to the death of the

deceased, or if it had not executed and issued the policy, :

it had done all the acts and functions necessary to the issu-

ance of the policy, and all that was left to be done by it was :

the ministerial function of filling in the blanks in the form

of a policy, a copy of which is attached as Exhibit A to the

complaint; and that the defendant had many such blank

forms. ;

That the defendant company had in fact executed and

issued a policy prior to the death of the deceased; or, if it

had not, it would have thereafter done so had death not

ensued when it did.

That by its conduct and acts, as set forth hereinbefore,

the defendant company is estopped to deny the execution

and issuance of said policy, and defendant has waived any re-

quirement that the policy be executed, issued or delivered

during the life and sound health of the deceased.

That it would be a fraud upon petitioner and her de-

ceased husband to permit the defendant company to appro-

priate and convert to its own use said funds, as it did when

it cashed said check dated November 15, 1949, and not be

responsible and liable to her for the amounts sued for.

That petitioner is entitled to a decree of specific per-

formance and have the court, under its equitable powers

and jurisdiction, consider “that done which should have

been done,” and decree the policy, as attached as Exhibit

A, as executed, issued and delivered and of full force and

effect on the life of said deceased at the time of his death,

and have the court award judgment against said defendant,

based on said policy, in the amount sued for.

10 |

That proof of claim and demand was made on defendant

company by petitioner and denied, and the failure to pay

the same was in bad faith under the Georgia law, entitling

petitioner to the statutory penalty and attorney's fees.

The prayer for specific performance was “That this court

declare, adjudge and decree the ‘Executive and Profes-

sional Accident policy,’ copy of which is hereto attached

and marked ‘Exihit A,’ to have been consummated on the

life of David Halsey Burks prior to his death on December

3, 1949, and of full force and effect on the said David

Halsey Burks prior to and at the time of his death.”

(b)

Count Two

This count is grounded on the legal remedy of breach

of promise to insure and damages therefor.

This count alleges the identical facts as set forth in

Count One, with the additional allegations:

That by virtue of the alleged foregoing facts (the same

as set forth in Count One hereinbefore) , defendant became

obligated under said intention and agreement to deliver

to said deceased said policy, dated November 15, 1949, to

be effective as of November 15, 1949, and having failed

to do so, breached its said obligation and agreement, and is

responsible in damages therefor to petitioner.

That by virtue of the foregoing, the defendant company

became obligated under the law to deliver to said deceased

said policy, dated November 26, 1949, the date it cashed

said check and converted the funds derived therefrom to

defendant’s own use, and having failed to do so, has

breached its said obligation and is responsible in damages

therefor to the petitioner.

The prayer was for $12,500 damages and attorney’s fees.

(c)

Count Three

This count is grounded on negligence of the defendant

for unreasonable delay and failure to execute and deliver

the policy for an unreasonable time, or for unreasonable

delay and failure to notify plaintiff or her deceased hus-

band of a rejection, if such was the case, so that insurance

to cover the same risk could be obtained elsewhere, as was

contemplated in the event of a rejection.

This count likewise sets forth the same allegations as

Count One, with the additional allegations:

That neither she nor the deceased was notified by the

defendant that said policy was not in force prior to Decem-

ber 3, 1949.

That, under the circumstances, a reasonable time had

expired prior to December 3, 1949, for defendant to notify

the deceased that he was not accepted, if such were the

fact. That the defendant company gave every indication

that the deceased had been accepted and was insured prior

to his death, and led the deceased and petitioner to believe

that the deceased was accepted and that the policy was of

full force and effect prior to the death of the deceased.

That the defendant was negligent in not notifying de-

ceased within a reasonable time that he was not accepted

for said policy, if such were the case, and that the defend-

ant company had ample time between November }5 and

December 3 to so notify the deceased or plaintiff.

That the defendant company was negligent in failing to

notify the deceased that he was not covered by said policy

prior to his death, so that he could have acquired other —

insurance to protect him against the risk.

The specifications of negligence were that the defendant

was negligent:

(a) In failing to give notice within a reasonable

time and before the expiration of a reasonable time

that the policy was not of force on the life of said de-

ceased.

“(b) In giving the impression, by the statement of

its agent and by the acts and conduct of its agent and the

_ defendant itself, as aforesaid, at its home office, that

said policy was of full force and effect.

“(c) In giving the impression that said policy was

of full force and effect, by accepting said twelve checks

and cashing the one of November 15, 1949, as a fore-

said, and appropriating to its own use the funds de-

rived therefrom.

“(d) In failing to notify said deceased within a

reasonable time that the insurance involved was not

in force, so that he could have bought insurance to

protect against the same risk elsewhere.

“(e) In not delivering to said deceased said policy

prior to the death of the deceased, which would be of

full force and effect and binding on the defendant at

the time of the death of the deceased.

“(f) In advising deceased, by and through its duly

authorized agent, that if said check of November

15, 1949, were cashed by the home office, then said |

policy would be of full force and effect from the date

of the check, and then not delivering said policy ac-

cordingly.”

(@) |

Count Four (Added by Amendment)

This count is based on the legal remedy of reformation

and was filed as an amendment to petitioner's original com-

plaint, when it was first ascertained that the defendant

company admitted accepting the deceased for a policy and

had actually issued and executed a policy on December 5,

1949, the same as the one sued on. This information was ob-

tained in response to petitioner's notice to produce after

the filing of the 3 count petition.

The allegations of this count are practically identical with

the allegations in Count One, with the allegations adjusted

to the fact that a policy of insurance was actually executed

and issued by the defendant company and dated December

5, 1949, and set forth other facts, admitted by the defend-

ant in its response to petitioners’ notice to produce as fol-

lows:

(1) That the “Application for Accident Insurance Poli-

cy” attached to plaintiff's complaint as Exhibit C was re-

ceived at the defendant's home office on November 21,

1949. (R. pp. 83, 84.)

(2) That the application (R., 83,84) was uncondition-

‘ally and unqualifiedly accepted in writing by the company

on November 30 or December 1, 1949 (R., p 76)

(3) That the exhibit attached to the affidavit marked

“Exhibit 1-A,” was a carbon paper impression made from

making out the envelope “in which the policy would have

been mailed to Mr. Burks had his death not intervened.”

(R., p. 87)

(4) That the policy sued on was actually issued and

executed on December 5, 1949, but was not delivered to

the deceased because the company on December 5, 1949,

learned of his death. (R., p. 87)

(5) An identical copy of the policy the defendant com-

pany actually executed and issued (R., p. 49), which the

company dated December 5, 1949.

(6) That the policy issued and dated December 5, 1949,

was the policy applied for; it did not have attached to it

the application and had no provision at all referring to

issuance or delivery as a condition precedent to its becom-

ing effective and binding; and that had the policy been

issued on November 30 or December 1, 1949, the date of

the acceptance of the application, the application would

not have been attached, nor would the policy have had

in it any provision requiring issuance or delivery during the

lifetime of the applicant. (R., p. 88)

This count further alleges:

That under the facts hereinbefore set out, and under the

law in such cases, the effective date of said policy and the

date the deceased became insured thereby was November

15, 1949, as stipulated, fixed and agreed by the said Pool;

and by virtue of the acceptance of said application and cash-

ing of said check, said policy should be so reformed, and

petitioner should have judgment on said policy as herein

prayed; or the effective date of said policy, and the date

the deceased became insured thereby, be established not

later than December 1, 1949, the date said application was

unconditionally accepted by the defendant, the defendant

having theretofore cashed the check of November 15, 1949.

That after the acceptance of said application, which was

admitted to be not later than December 1, 1949, the only

remaining act the defendant had to do to execute and issue

said policy was to have a clerk or stenographer fill in

approximately eleven blanks on its printed form, all of

which were ministerial acts.

- ‘

That defendant had on said date of acceptance of the

application, not later than December 1, many blank forms

of said policy, and it was the company's practice and pro- .

cedure, after the acceptance of an application, to forthwith

and without further acts or doings have said blanks filled

in said policy and immediately mailed to the insured.

That such policy actually executed and issued did not

have the application attached to it, and, consequently, no

part of the application is concerned herein, and no limita-

tion, restriction or provision set forth in the application

may be used in evidence or otherwise by the defendant

herein as a defense to this count.

That said policy should be reformed so that its effective

date will read, and said policy be declared, in full force and

effect as insuring the life of the deceased on one of the fol-

lowing dates: November 15, 1949, or December 1, 1949.

The prayer for reformation was:

“That said policy of insurance dated December 5,

1949, be reformed so that the effective date thereof

will be either November 15, 1949, or November 30,

or December |, 1949, and said policy be declared and

adjudged in full force and effect on the life of the

deceased at the time of his death, on December 3,

1949.”

Judgment in the sum of $12,500, as provided in said

policy, was prayed for, together with statutory penalty and

attorney's fees.

WHY THIS COURT SHOULD EXERCISE ITS

JURISDICTION TO GRANT CERTIORARI

Statutory Provision Conferring Jurisdiction

Section 1254 (1), Title 28, U. S. Code Annotated,

establishes the jurisdiction of this Court to grant the writ

of certiorari to the Fifth Circuit Court of Appeals.

Grant of Writ Because of Conflict of Decisions

Among the Circuit Courts of Appeals

A decision of one Circuit Court of Appeals in conflict

with the decision of another Circuit Court of Appeals on

the same matter presents a special and important reason for

the grant of the writ, so that uniformity of decisions among

the Circuit Courts of Appeals may be secured.

Supreme Court Rule 38, Par. 5 (b)

Magnum Import Co. vs. Coty, supra

Ruhlin vs. New York Life Ins. Co., supra

Grant of Writ Because Decision of F ifth Circuit Court

of Appeals Decided an Important Question of Local

Law in Conflict with Applicable Local Decisions

A decision of the Circuit Court of Appeals on important

questions of local law in a way probably in conflict with

applicable local decisions is another special and important

reason which will be considered by this Court on petition

for writ of certiorari.

Supreme Court Rule 38, Par. 5 (b)

Petitioner contends the decision of the Court of Appeals

for the Fifth Circuit is in conflict with decisions of other

Circuit Courts of Appeals on the same matter and decides

questions of local Georgia law probably in conflict with

applicable local Georgia decisions.

THE QUESTIONS PRESENTED AND REASONS

RELIED ON FOR ALLOWANCE OF WRIT

The Questions Presented

In dealing with the entire case and all four counts of

the petition, the Circuit Court of Appeals stated:

“Upon our consideration of the claims of error

urged upon this appeal our conclusions both as to

the controlling issues involved in Counts I, Il and IV

of the complaint, and as to the decisions of the Court

of Appeals and the Supreme Court of Georgia which

in point and principle control the decisions of such

issues adversely to the contentions of the appellant co-

incide in all material respects with those expressed

by the Trial Court. There is consequently no necessity

for any other or further exposition why the judgment

of the trial Court upon these counts is correct. How-

ever, as to that portion of the opinion discussing the

ruling upon the merits of the Third Count of the

petition we refrain from any expression of approval

or disapproval, since we find this to be

in the present case. The allegations of this count of thé

complaint, together with the facts, when considered in -

the light of the law already held properly applicable to

the transaction now under review, are necessarily con-

fined in material substance to the claim of negligence

in failing to act with reasonable promptness in either

accepting or rejecting the application and in notify-

ing the plaintiff of its action. While we fully recognize

and give obedience to the fundamental principal that

the existence of negligence and the determination of

what constitutes a ‘reasonable time’ are generally for

determination as questions of fact upon consideration

of pertinent circumstances, we are nevertheless of the

firm opinion that under the precise facts and circum-

stances of this case a finding of negligence based upon

reasonable delay would not be legally supportable.

The minds of reasonable men could not differ on these

facts. We are therefore not required to determine, or

to express it more accurately, declare, the law of Geor-

gia which would be applicable if a factual basis for such

finding existed. The Georgia Courts do not appear to |

have passed upon the question and, since we find at

the beginning of our consideration of it the existence

of an insurmountable bar to any recovery by the com-

plainant a discussion of the legal merits, otherwise, of

this claim could be only academic.” (Emphasis sup-

plied.)

The first. question presented is whether the Circuit

Court of Appeals after conceding there was no applicable

Georgia precedent concerning Count III (unreasonable

delay count), was correct in holding that “The minds of

reasonable men could not differ on these facts”; thereby

holding that this count presented no factual issue for a

jury to pass upon. This holding is in direct conflict with

two Circuit Courts of Appeals decisions mentioned hereto-

fore, and in direct conflict with numerous other state court

. decisions on the same question. It is believed by petitioner

that the “insurmountable bar” referred to by the Fifth

Circuit Court of Appeals has no bearing whatsoever on this

count.

The “insurmountable bar” referred to could only be

that portion of the application (R. p. 39) which states:

“I further agree that this insurance shall not be

in force until the application is accepted and policy

issued by the company nor until policy is delivered to

and accepted by the applicant while in sound health

and free from injury.”

Because no policy of insurance was actually issued and

delivered to and accepted by the deceased while in life, the

Fifth Circuit Court of Appeals, in adopting the trial court's

decision with respect thereto, held that Counts I, II and

IV were without merit.

Means

_. ‘The second question is whether the Fifth Circuit Court

_ of Appeals in so holding decided this phase of the case

contrary to applicable Georgia State court decisions.

Reasons Relied On For Allowance of Writ

With respect to Count III, the Fifth Circuit Court of

Appeals did not express “approval or disapproval” of the

District Court’s decision. In conceding there was no Geor-

gia law or decision on the question involved, the Circuit

Court of Appeals did not attempt to ascertain what the

Georgia courts might hold on the facts presented, as this

Court held was vital in Ruhlin us. New York Life Insur-

ance Co., supra. The Circuit Court of Appeals determined

this count contrary to decisions of two other Circuit Courts

of Appeals and contrary to many decisions of numerous

state courts. The Circuit Court of Appeals unquestionably

was influenced in its determination of this count by the

“insurmountable bar’ referred to in its opinion, which

was undoubtedly the above-quoted part from the applica-

tion (R. p. 39) ; whereas, the law appears conclusively to be

that the provision in an application requiring delivery of

the policy during life and sound health of the applicant

places an additional burden on the insurance company not

to unreasonably delay the processing of the application,

and certainly can be no defense to this count.

It is contended the Circuit Court of Appeals’ decision

on this count is contrary to the decision thereon that would

be rendered by the Georgia courts.

It was admitted that:

(1) The application was unconditionally accepted two

days before the applicant's death. (R., p. 76)

(2) The applicant’s check for the first premium was

cashed approximately a week before his death, and the

proceeds thereof covered into its general treasury by the

defendant (R., p. 84).

(3) Because of the procedural routine in the defend-

ant’s policy-issuing office, no policy was actually issued

until two days after the death of the deceased. (R., p. 84)

(4) The policy actually issued two days after the death

of the applicant, did not have attached to it the application,

nor did the policy itself have any provision such as con-

tained in the application to the effect that delivery and ac-

ceptance was necessary; and that had the policy been issued

prior to the death of the applicant, the application would

not have been attached, and the policy itself would have

contained no provision requiring delivery or acceptance.

(R., p. 88.)

Petitioner feels confident that under the law of Georgia

and the admitted facts above set forth, the Circuit Court

of Appeals erred in its judgment on Counts I, II and IV.

Petitioner respectfully submits that the law of Georgia

is that no delivery or acceptance of a policy is required

unless so provided in the contract; and that no application,

nor any part thereof, which is not attached to the policy

may be used in defense of any action in any controversy

between the parties to or interested in the policy; and that

such a non-attached application can never be considered as

a part of the policy or contract between the parties.

Petitioner contends that under the law of Georgia, where

the application was unconditionally accepted two days prior

to the applicant’s death, and since there was nothing more

for the applicant to do to effectuate the binding force of the

contract, and since nothing remained for the insurance

company to do except to fill in blanks on its policy form

and countersign the policy and mail the policy to applicant

(and since the application would not have been attached

to the policy if issued and executed when the application

was approved, two days prior to the applicant's death) ,

petitioner is entitled to have the contract specifically per-

formed and declared of force and effect the date of the

unconditional approval of the application, two days prior

to her husband's death, with the application unattached.

seseaidinttliataaiaeataiiead

, :

Petitioner also contends, under these facts and the Geor-

gia law, that she is entitled to have the policy, which was

actually executed issued and dated two days subsequent

to her husband’s death, reformed and declared dated and

of full force and effect the date the application was uncon-

ditionally accepted, two days prior to her husband's death.

Petitioner contends that if the defendant company could

cash and cover into its general treasury one of the twelve

monthly premium checks accepted by it from the applicant,

approve the application and delay the issuance of the policy

for four days, and not be liable for death ensuing two days

prior to the issuance of the policy, but two days subsequent

to the unconditional acceptance of the risk, then the de-

fendant company could have cashed all twelve premium

checks and delayed the issuance of the policy for 365 days,

though the application was unconditionally approved ap-

proximately a week after the cashing of the first check, and

not be liable for death ensuing two days before the expira-

tion of the $65 days. The principle, in law, is the same for

four days or 365 days.

It is also respectfully contended that the Circuit Court

of Appeals erred in its judgment with respect to Counts

I, II and IV in deciding that the facts set forth therein did

not present a jury question under the law of Georgia, with

respect to the following matters:

(1) Whether the defendant company waived the pro-

visions of issuance and delivery of policy required in the

application by its own acts and the acts and oral agree-

ments of its General Agent for the State of Georgia.

(2) Whether the defendant was estopped from urging

the defense based on such provisions of the application be-

cause of the acts and oral agreements and knowledge of its

General Agent and because of its own acts.

This petition is accompanied by a certified transcript

of the record in the Circuit Court of Appeals for the Fifth

Circuit, including the proceedings in that court in this

matter, and ten additional copies thereof. A supporting

brief follows hereafter.

WHEREFORE, Petitioner prays that a writ of certio-

rari be issued and directed to the United States Court of

Appeals for the Fifth Circuit to bring up the record in this

case, and that the decision of that court be reviewed and

reversed.

This ____. day of February, 1952.

Respectfully submitted,

Joun J. Frynt, Jr.

P. O. Box 103

Griffin, Georgia

WALLACE MILLER, JR.

515 Persons Building

Macon, Georgia

Miter, MILLER & MILLER

515 Persons Building Attorneys for Petitioner

Macon, Georgia

IN THE SUPREME COURT OF THE

UNITED STATES

MRS. PAULINE R. BURKS

Petitioner

COLONIAL LIFE & ACCIDENT INSURANCE

COMPANY OF COLUMBIA, SOUTH

CAROLINA

Respondent

Brief in Support of Petition for

Certiorari

‘SUBJECT INDEX

Preliminary statement 1

Statement of Jurisdictional Grounds Invoked _...____ 1, 2

Statement of the Case 2, 3

Specification of Assigned Errors Oe

_ Argument and Citation of Authority 6-41

Conclusion 41

CASES CITED

, Page

American Life Ins. Co. of Ala. vs. Hutcheson, 109,

F. oy Pog 29, 34, 36, 38

American Life Ins. Co. of Ala. vs. Stone, 78 Ga. App. 98 16

Armour & Co. vs. Ross & Barfield, 110 Ga. 408 9

Behnke vs. Standard Acc. Ins. Co., 41 F (2d) 696, 699 (7th Cir.) 34

Bankers Life & Casualty Co. vs. Cravey-—Ga.— (unreported) 36

Beswick vs. National Casualty Co. 226 S.W. 1031 _...._._.. 17

Chidester vs. Newark, 58 Fed. Supp. 787 37

Clark vs, National Aid Life Assn. 57 Pac. (2d) 882 17 ©

Clubb vs. The American Accident Co. of Louisville, Ky.

97 Ga. 502 10

Cooper Company vs. State of Ga. 187 Ga. 497, 500 ss 35

DeFord vs. New York Life Ins. Co. 224 Pac. 1049, 1050 __. 35, 86

‘Douglas vs. Mutual Benefit H.& A. Assn. 76 Pac. (2d) 453 36, 38

Fargo G. & P. Co. vs. Globe Corp. 161 F. (2d) 811 (7th Cir.) _. 87

Fi Id vs. Colorado Life Co. 116 S.W. (2d) 242

Ft. Valley Coca-Cola Bottling Co. vs. Lumbermen’s

Mutual Ins. Co. 69 Ga. App. 120, 124-125 20

Georgia Masonic Mutual Ins. Co. vs. Gibson, 52 Ga. 640 (3) 15, 30

German-American Life Asso.vs. Farley, 102 Ga. 720, 735 _....._ 9

Gulf Life Ins. Co. vs. Bloodworth 73 Ga. App. 102 27

Hahn National Casualty Co. 136 Pac. (2d) 739

Hornstein vs. Cramer Bros. Freight Lines, 188 F. (2d)

148 (8rd Cir.) 36

Insurance Company vs. Colt, 20 Wall 560, 22 L. Ed. 423... 22

Company vs. McCain, 96 U.S. 84, 86 10

Insurance Company vs. Wilkinson, 80 U.S. 222 ll

Johnson vs. Aetna Ins. Co. 123 Ga. 404, 406, 407, 410 11, 14

Keller ve. Provident Lite & Acc, Ine: Cow 40S2. (2d) 877 38. =

Lea vs. Harris 88 Ga. 236 40

L. & N. Ry. Co. vs. Spinks, 104 Ga. 692 40°

Likenhoger vs. Owens, 181 F. (2d) 97,99 "th Cir.) ————____ 33

Life & Cas. Ins. Co. of Tenn. vs. , 48 Ga. App. 380 (2) 17, 27

Magnum — Co. vs. Coty 262 U.S. 159, 163;

67 L. 922, 924 - 2

Mass, Benefit Life Assn. vs. Robinson, 104 Ga. 256 (2) 32

Mechanics, etc. Ins. Co. vs. Mutual Real Estate Assn. 98 Ga. 262 14

Metropolitan Life Ins. Co. vs. Hale, 177 Ga. 632 15

Mutual Benefit H. & A. Assn. vs. Bell, 49 Ga. App 640, 643 __. 27

National Li Ins. Co. of America vs. Jones, 183 S.E. 443 — 25

New York Life Co. vs. Babcock, 104 Ga. 67 18, 25

Parham vs. National Relief Assurance Co. $3 Ga. App. 59 ____. 3

Payne vs. Watters, et al, 9 Ga. App. 265 (2nd case) ——______ 40

Postal a & Cable Co. vs. Kaler et al, 65 Ga. App. 641 _ 40

Progressive Fire Insurance Co. vs. Morrison, 72 Ga. App.

473, 482 30

Progressive Life Ins. Co. vs, Bohannon, 74 Ga. App. 617 (8) — 9

Rublin vs. New York Life Ins. Co. $04 U.S. 202, 82 L. Ed. 1290 2, 32

Shell Oil Co. vs. Manley, 124 F. Cd) 714 (7th Cir.) ________. 87

Simonton et al vs. Liverpool, Lon

Ga. 76-77

Southern Life Ins. Co. vs. Kempton 56 Ga. 339 (1) _______—. 28

State Mutual Life Assn. vs. Baldwin, 116 Ga. 855, 860 40

on & Globe Ins. Co., 51

State Mutual Life Ins. Co. vs. Forrest, Admrx., 19 Ga.

App. 296 (1)

The st & Suburban Ry. of Savannah vs. Brauss, 70 Ga.

(1)

Tobert vs. Cherokee Ins. Co., 141 Ga. 773 (1)

Travelers Ins. Co. vs. Taliaferro 54 Pac. (2d) 1069

United National Ins. Co. vs. Cody, 81 Ga. App. 527

Wellborn vs. Johnson, 204 Ga. 389

Witten vs. Beacon Life Assn. 33 S.W. (2d) 989

Zephyr American Corp. vs. Bates Mfg. Co. 128 F (2d)

(3rd_ Cir) = a

STATUTES CITED

Sect. 3-108, 1933 Code of Ga. Ann.

Sect. 3-109, 1933 Code of Ga. Ann.

Sect. 4-301, 1933 Code of Ga. Ann.

Sect. 37-106, 1933 Code of Ga. Ann.

Sect. 56-801, Code of Ga. Ann.

Sect. 56-904, Code of Ga. Ann.

TEXTBOOKS CITED

~ $2C.J. Sect. 182, p. 1098

$2CJ. Sect. 196 p. 1107

_ 58 C.J. Sect. 297 p. 1054

_ 44 CJS. Sect. 282, p. 987

e Wi

on Contracts, Revised Ed., Vol. 8, Sects. 747-750.

pp. 2120-2126

IN THE SUPREME COURT OF

THE UNITED STATES

MRS. PAULINE R. BURKS

Petitioner

vs.

COLONIAL LIFE & ACCIDENT INSURANCE

COMPANY

Respondent

BRIEF IN SUPPORT OF PETITION FOR

CERTIORARI

PRELIMINARY STATEMENT

This case terminated adversely to petitioner herein in

the District Court for the Middle District of Georgia upon

grant of motion for summary judgment filed by the re-

pondent herein. The United States Circuit Court of Appeals

for the Fifth Circuit affirmed the judgment of the District

Court. The Circuit Court of Appeals’ affirming decision

is reported in the official reports as follows:

Burks vs. Colonial Life & Accident Insurance Co., No.

13713; 192 F. (2d) 648.

STATEMENT OF JURISDICTIONAL GROUNDS

INVOKED

This Court has jurisdiction to grant the writ of certio-

rari applied for in this case.

(1)

Sect. 1254 (1), Title 28, U.S.C.A.

Rule of Supreme Court

Rule 38, Par 5 (b) of this Court sets forth that a petition

for writ of certiorari may be considered and granted by this

Court in a case where a Circuit Court of Appeals rendered

a decision in conflict with decisions of other Circuit Courts

of Appeals on the same matter, or where the Circuit Court

of Appeals has decided an important question of local law

in a way probably in conflict with applicable local decisions.

It is respectfully submitted that the Circuit Court of

Appeals for the Fifth Circuit in its decision in this case

rendered a judgment in conflict with that of other Circuit

Courts of Appeals on the same subject matter and decided

important questions of local Georgia law contrary to appli-

cable Georgia decisions.

Decisions of This Court

The following decisions of this Court hold that the grant

of writ of certiorari is proper to secure uniformity of deci-

sions among the Circuit Courts:

Magnum Import Co. vs. Coty, 262 U.S. 159, 163, 67

L. Ed. 922, 924

Ruhlin vs. New York Life Ins. Co., 304 U.S. 202, 82

L. Ed. 1290

STATEMENT OF THE CASE

This case terminated on the plaintiff's petition in the

District Court on grant of motion for summary judgment

and supporting affidavits filed by the defendant therein;

and the Circuit Court of Appeals affirmed the judgment of

the District Court.

For fear of being burdensome, we shall not repeat here

the allegations and prayers of the four-count petition nor

the facts set forth in the motion for summary judgment

and supporting affidavits, all of which are set forth in the

attached and foregoing petition for certiorari (Pet. Cert.

pp. 4-15 and pp. 19-20)

SPECIFICATIONS OF ASSIGNED ERRORS

It is respectfully contended that the Circuit Court of

Appeals erred in holding:

As to Count I

(a) That the oral agreements and promises made by

and between the deceased and the company’s General

Agent for the State of Georgia were unenforceable, and

that all such agreements and promises merged into and

were rendered nugatory by the written application.

(b) That the provision of the written application con-

trolled where contradictory to such oral agreements and

promises made by and between the company’s general agent

and the deceased.

issuance and delivery of the policy during the life and

sound health of the applicant was not waived, nor was the

defendant estopped from insisting on it as a defense, by

virtue of the oral agreements and promises of its general

agent, his acceptance and retention of twelve premium

payment checks, the later acceptance and retention of the

twelve premium payment checks and the cashing of the

one dated November 15, 1949, by the defendant's home

office, and the unconditional and unqualified acceptance

of the application on December 1, 1949.

(d) That the agreement to insure was not complete

when the offer (the application) was unconditionally and

unqualifiedly accepted on December 1, 1949.

(e) That this count set forth no issue for determina-

tion by a jury.

As to Count II

(a) That the oral agreements and promises ma: ".y

and between the deceased and the company’s Geucral

Agent for the State of Georgia were unenforceable, and

that all such agreements and promises merged into and

were rendered nugatory by the written application.

(b) That the provision of the written application con-

trolled where contradictory to such oral agreements and

promises made by and between the company’s general agent

and the deceased.

issuance and delivery of the policy during the life and

sound health of the applicant was not waived, nor was the

defendant estopped from insisting on it as a defense, by

virtue of the oral agreements and promises of its general

agent, his acceptance and retention of twelve premium pay-

ment checks, the later acceptance and retention of the

twelve premium payment checks and the cashing of the one

dated November 15, 1949, by the defendant's home office,

and the unconditional and unqualified acceptance of the

application on December 1, 1949.

(d) That the agreement to insure was not complete

when the offer (the application) was unconditionally and

unqualifiedly accepted on December 1, 1949.

(e) That this count set fort!» ao iesce for determination

by a jury.

As to Count Ill

(a) That the requirement of issuance and delivery of

the policy in the application was a bar or was a defense in

any respect to a right of recovery by petitioner.

(b) That, as a matter of law, although questions of

diligence, negligence and what is a “reasonable time” are

generally questions of fact for a jury determination, “minds

of reasonable men could not differ on these facts.”

was correct which held that petitioner could not maintain

this count in her own individual name, but if the same was

maintainable at all, it should be brought in the name of

the personal representative of the deceased; and that no

action would lie in the name of the personal representative

of the deceased, because such an action would be personal to

the deceased and died with him.

(d) That this count set forth no issue for a determina-

tion by a jury.

As to Count IV

(a) That the provision in the application requiring

issuance and delivery of the policy during the lifetime and

good health of the applicant was a defense to this count.

(b) That the provision in the application requiring

issuance and delivery of the policy during the lifetime and

sound health of the applicant was a conclusive bar to right

of recovery in this count.

on the policy form after the death of the applicant, pursu-

ant to the official, unqualified and unconditional accept-

ance of the application prior to his death, could not be con-

sidered at all.

(d) That the agreement to insure was not completed

when the offer (application) was unqualifiedly and uncon-

ditionally accepted on December 1, 1949.

(e) That petitioner was not entitled to reformation of

the policy actually issued as prayed for in this count.

ARGUMENT

Preliminary Summary

This Court should take jurisdiction of this case and grant

the writ of certiorari because the Circuit Court of Appeals

has decided a very important question of Georgia law which

has never been passed upon by the courts of Georgia, and

the Circuit Court of Appeals has decided such question

without any effort whatsoever on its part to ascertain how

the court of Georgia might decide the question. Moreover,

the Circuit Court of Appeals decided this question con-

trary to decisions of two other Circuit Courts of Appeals

on the same question. This is with respect to Count III of

the petition, and the principal question here is whether the

facts alleged present a factual question of unreasonable

delay on the part of the insurance company in accepting

or rejecting the application of petitioner’s deceased hus-

band and notifying petitioner and her husband accordingly.

With respect to Counts I, II and IV, the Circuit Court

of Appeals decided the questions presented therein con-

trary to applicable Georgia appellate court decisions.

The principal questions in these three counts are:

(a) Did all the oral promises, representations and agree-

ments of the defendant's General Agent for the State of

Georgia merge into the written application? We contend

the answer is no.

(b) Did the facts alleged (assuming them to be true,

as we must on motion for summary judgment) concerning

the promises, representations and agreements of the general

agent of the defendant, the cashing of the first premium

check and the unqualified acceptance of the application by

the defendant company on December 1, 1949, constitute

a waiver of, or estop the defendant company from insisting

on, contrary provisions appearing in the written applica-

tion? We contend the answer is yes.

(c)

(1) Did the unqualified acceptance of the applica-

tion on December 1, 1949, disregarding entirely the allega-

tions of oral promises, representations and agreements of

the general agent, together with the prior cashing of the

first premium check, entitle applicant and petitioner on

December 1, 1949, to the policy applied for? We contend

the answer is yes.

(2) If petitioner and her husband were entitled to

the policy on December 1, 1949 (it being admitted that

the application would not have been attached and that no

provision would have been in the policy requiring the issu-

ance or delivery as a condition precedent to the binding

effect of the policy) , was the issuance or delivery necessary

to bind the company for the risk commencing on December

1, 1949? We contend the answer is no.

(3) If petitioner and her husband were entitled to the

policy on December 1, 1949, with no application attached

and with no provisions therein requiring the issuance or de-

livery of the policy as a condition precedent to its binding

effect, is petitioner entitled to have the policy actually is-

sued and dated December 5, 1949, reformed tothe date of

entitlement thereof, that is, December 1, 1949? We contend

the answer is yes.

If our answers to questions (a) or (b) above are correct,

necessarily a factual question is presented, and the Circuit

Court of Appeals erred in holding otherwise.

If our answers to questions (c) (1), (2) and (3) are cor-

rect, it necessarily follows that the Circuit Court of Appeals

erred in its decision and that this Court should not remand

;

‘

;

oS Oa TEN teres

— lh Nee SES AE OPM ELON OGLE IOI LI EEE DAI flo ne =

PLT ERNE DEH I

the case back to the Circuit Court of Appeals for it to de-

termine for itself how the courts of Georgia would decide

the questions presented in Count III, but this Court should

direct that judgment be rendered in favor of petitioner on

her motion for summary judgment. (R., p. 111)

Counts I, II and IV

We shall present these counts together, for it is believed

that such presentation will dispense with repetitious argu-

ment and citation of authority.

The defendant’s General Agent for the State of Georgia

represented to petitioner’s husband that the written appli-

cation was a formality required by the company. He fur-

ther represented and agreed with petitioner and her hus-

band that if the company cashed their first premium pay-

ment check, the check being signed by both petitioner and

her deceased husband, such check having printed on it

“Premium Payment—The Executive and Professional Pol-

icy”, then the policy would be forthcoming and would be

dated and of force and effect on November 15, 1949, the

date of the first premium check signed by both petitioner

and her husband on their joint banking account. The

check was cashed on November 25, 1949, by the defend-

ant’s home office, and petitioner and her husband ascer-

tained this fact on November 29, 1949, and forewent obtain-

ing other contemplated insurance to cover the same risk.

The husband died as a result of an accident within the pro-

visions of the policy applied for on December 3, 1949.

There was no notice of any limitation of the authority

of the defendant’s general agent in the application, or other-

wise, to petitioner or her husband; and it was alleged that

the general agent had actual as well as apparent authority

to make the representations and agreements on behalf of

and to bind the company therefor.

“The agent's authority shall be construed to include

all necessary and usual means of effectually executing

it. Private instructions or limitations not known to

persons dealing with a general agent shall not affect

them.”

Sect. 4-301, 1933 Code of Georgia Annotated

Limitation of authority on the general agent unknown

to persons dealing with them will not bind them.

Armour & Co. vs. Ross & Barfield, 110 Ga. 403

Under the law of Georgia, and under the allegations of

the complaint, General Agent Pool had authority to bind

the company the same as its president, and, consequently,

had authority to bind the company in his agreement with

the deceased as to when the insurance was to become effec-

tive.

“One who solicits insurance, and represents the com-

pany in conducting the negotiations which lead up to

the execution of the contract and subsequently in the

delivery of the contract itself, is the general agent of the

company, with reference to that particular contract.

Relatively to it, he is as much the alter ego of the com-

pany as any other corporate officer.”

German-American Life Assn. vs. Farley, 102 Ga. 720,

735

Progressive Life Ins. Co. vs. Bohannon, 74 Ga. App.

617 (3)

This is the same rule as laid down by this Court as fol-

lows:

‘“‘No company can be allowed to employ another as

its agent and then disavow responsibility for his acts. . .

“The law is equally plain, that special instructions —

limiting the authority of a general agent, whose powers

would otherwise be coextensive with the business en-

trusted to him, must be communicated to the party with

whom he deals, or the principal will be bound to the

same extent as though such special instructions were

not given. Were the law otherwise, the door would be

open to the commission of gross frauds. Good faith

requires that the principal should be held by the acts

of one whom he has publicly clothed with apparent au-

thority to bind him.” (Emphasis ours.)

Insurance Co. vs. McCain, 96 U.S. 84, 86

This rule was followed and applied in Lumbermen’s Mu-

tual Ins. vs. Slide Rule Co. (and vice versa), 177 F. (2d) 305

(7th Cir.)

On the authority of an insurance agent “to solicit and for-

ward applications for policies of insurance,” to bind his

company, contrary to his actual authority, on a matter con-

trary to that as written in the application itself, an early

Georgia Supreme Court case, which is still the Georgia law,

held:

“Where soliciting and forwarding applications for

policies of insurance was withinthe scope of the duties

of an agent of an insurance company, and such agent

undertook to prepare for another an application for

insurance and wilfully inserted therein a false answer

to a material question, he will be regarded in so doing

as the agent of the company and not of the applicant,

and the agent’s knowledge of the falsity of the answer

will be imputed to the company.” Clubb us. The Amer-

ican Accident Company of Louisville, Ky. (and vice

versa) 97 Ga. 502

In deciding that case, the Supreme Court of Georgia

ann

followed and quoted at length from the case of Insurance

Co. us. Wilkinson, 80 U.S. 222, part of which follows:

“The agents are stimulated by letters and instruc-

tions to activity in procuring contracts, and the party

who is in this manner induced to take out a policy,

rarely sees or knows anything about the company or

its officers by whom it is issued, but looks to and relies

upon the agent who has persuaded him to effect in-

surance as the full and complete representative of the

company, in all that is said or done in making the

contract. Has he not a right to so regard him? ... . .

But to apply such a doctrine in its full force to the

system of selling policies through agents, which we

have described, would be a snare and a delusion, lead-

ing, as it has done in numerous instances, to the gross-

est frauds, of which the insurance companies receive

the benefits, and the parties supposing themselves in-

sured are the victims.”

No knowledge of any limitation on the authority of the

company’s general agent was brought to the attention of

petitioner or her husband; but even if there had been such

notice or knowledge, the acts and representations of the

defendant's general agent, made before the issuance of the

policy, would, under the law of Georgia, constitute a waiver

of any provision in the application or ,olicy that was to the

contrary, and the company would be estopped to urge the

same as a defense.

This is the often-announced law in Georgia.

“Where a policy of fire insurance contained a stipu-

lation that it should be void ‘if the subject of insurance

be a building on ground not owned by the insured

in fee simple’ but at the time the application for insur-

ance was made the company, through its agent, knew

that the applicant did not own the land on which

the building sought to be insured was situated, it will

not be heard, in defense to an action on the policy, to

set up the non-compliance of the plaintiff with this

condition of the contract.

“. . . . It will be seen that the controlling ques-

tion for decision is whether, under the allegations of

the petition as amended, the defendant, by reason of

the knowledge of its agent as to the real character of the

plaintiff's ownership of the property, is estopped to

defend on the ground of the plaintiff's non-compliance,

with the conditions of the contract of insurance,

or whether the plaintiff, by accepting the policy on

those conditions, and with notice of the limitation on

the power of the agent to make a waiver for the com-

pany, is precluded from recovering on the policy.

There is no principle of law more firmly established

than that, in general, the knowledge of an agent as to

a material fact bearing upon the validity of a contract

made on behalf of his principal is imputable to the

principal; and this principle has uniformly been ap-

plied by our courts in actions on contracts of insurance.

. Here the insured made written application for

a policy of fire insurance. Upon being asked the ques-

tion as to the character of his ownership of the prop-

erty, he frankly informed the agent with whom he

was dealing that he owned the building but did not

own the land. There is no intimation in the petition

that the insured was on notice, before receiving the

policy, that the agent had no power to write the insur-

ance with the title to the property held as it was. There

is nothing from which an inference can be drawn that

the agent and the insured colluded to defraud the in-

surance company by concealing the truth as to the

_ ownership of the property. . . .

Sa SIS 3 One of the rules of the company is

that insurance will not be issued upon a building situ-

ated on land not owned by applicant. But the com-

pany, through its agent knows that the applicant owns

the building which he wishes to have insured, but does

not own the land on which it is situated and with this

knowledge nevertheless issues a policy on the building.

Certainly, after leading the applicant to believe that

he would be protected, and receiving from him the

premiums charged for the insurance, it should not in

good conscience be heard to set up, in defense to an

action on the policy, that the ownership of the building

and of the land were in different persons. True, the

policy states on its face that no agent has the power to

waive any of the conditions of the policy, and that none

of them will be deemed to have been waived unless

such waiver is attached to or endorsed upon the policy

in writing. But this is not a question of waiver, so much

as of notice and estoppel. The agent’s knowledge, as

has been seen, is the company’s knowledge. In spite of

the assertion in the policy that the contract shall be

void if the ownership of the property is of a given

character, the policy has been issued with notice

to the company that the ownership is of that

character. Regardless of any question of waiver, then,

the company has placed itself in a position where it

would be inequitable to allow it to make the defense

which it seeks. “Waiver is sometimes the express aban-

donment of a right. More frequently it is implied from

acts that are inconsistent with its continued assertion. .

Estoppel ‘is the shield of justice interposed for the pro-

tection of those who have not been wise or strong

enough to protect themselves. It is the special grace

of the court, authorized and permitted to preserve

equities that would otherwise be sacrificed to cunning

and fraud.”

Johnson vs. Aetna Insurance Co., 123 Ga. 404, 406, £

407,410 .

This last cited Georgia case reviews practically every case

in Georgia on the subject and announces that the rule in

the following early Georgia case is the proper rule in Geor-

gia, and all decisions to the contrary were overruled.

The early Georgia case so followed held:

“Conditions which enter into the validity of a con-

tract of insurance at its inception may be waived by the

agent and are waived if so intended, although they

remain in the policy when delivered; a limitation

therein upon the authority of the agent to waive such

conditions otherwise than in writing attached to or

endorsed upon the policy are treated as referring to

waivers made subsequently to the issuance of the pol-

icy.”

Mechanics, etc. Ins. Co. vs. Mutual Real Estate, etc.

Assn., 98 Ga. 262

We can see no distinction between the facts in the case

of Johnson vs. Aetna Ins. Co., supra, cited above and the

facts in the instant case. In both cases the agent had knowl-

edge of the full facts. The knowledge of the agent is the

knowledge of the principal, and with this knowledge money

was accepted and the application itself was accepted; and,

therefore, the company has waived, or is estopped to in-

sist on, provisions in the written application that are con-

trary to the agreements and representations made by the

agent.

“Where a member of a mutual insurance company

fails to meet the assessments made upon him, but sub-

sequently transmits to the secretary thereof an amount

of money in payment of all dues then demanded of

him, which sum the company retains until after his

death without notifying him whether it was satisfactory

or not, such action was a waiver of the default and

restored him to membership.”

Georgia Masonic Mutual Ins. Co. us. Gibson, 52 Ga.

640 (3)

In a later Georgia decision the same rule was applied,

that is, an agent can waive provisions in a written applica-

tion or policy and the company is estopped to insist on the

same; and in that later Georgia case the agent was not a

general agent, as in the instant case.

Metropolitan Life Ins. Co. vs. Hale, 177 Ga. 632

_ The District Court, affirmed by the Circuit Court of

Appeals, in holding that the representations and agreements

made by the general agent of the company were of no avail

to the petitioner in that all such representations and agree-

ments merged into the written application, said:

“All previous negotiations are merged therein and

no oral representations may be relied upon to vary its

terms. Mitchiner vs. Union Central Life Ins. Co., 185

Ga. 194; Wheeler vs. Fidelity & Casualty Co., 129 Ga.

237.”

(Ctf. Rec., p. 141, Footnote)

Neither of these Georgia cases cited by the District Court

dealt with an application and in neither was the contention

of waiver or estoppel involved.

_. However, in an insurance case similar to the instant case

where the point of estoppel and waiver was involved, the

appellate courts of Georgia, recognizing that the rule set

forth in these two cases cited by the District Court was

not in point, ‘stated:

“The defendant (the insurance company) relies on

Fowler vs. Preferred Accident Ins. Co., 100 Ga.

300; Life & Cas. Co. of Tenn. vs. Williams., 200 Ga.

273; MITCHINER VS. UNION CENTRAL LIFE

INS. CO., 185 Ga. 194. . . We have considered all of

these cases and do not think that they require a differ-

ent holding in the instant case.”

American Life Ins. Co. of Ala. vs. Stone, 78 Ga. App.

98-103.

As we view the decision of the District Court in this

case, affirmed as to counts I, II and IV, by the Circuit Court

of Appeals without elaboration, it completely overlooks the

law of Georgia that an agent for an insurance company

can, by his agreements, acts and representations, waive

written provisions in an application for insurance or the

policy itself, made prior to the issuance of the policy, as

in the instant case; the rule being that the notice, knowl-

edge and agreements made by the agent are imputed to the

company, and that with such knowledge, if the company

accepts the application or accepts money from the appli-

cant for the insurance, the company waives such written

provisions and is estopped to insist on them.

This rule of waiver and estoppel is recognized elsewhere.

“If a casualty insurance agent exceeded his authori-

ty in fixing the date, when the insurance should be-

gin, the insurer, by accepting and retaining the premi-

um secured under such circumstances by the agent,

ratified his act and waived the provision of the appli-

cation that it should not be binding until accepted by

the secretary of the insurer or an authorized agent,

and was estopped from denying the authority of such

agent.” (Emphasis ours) .

Beswick vs. National Casualty Co. (Kas.) 226 S.W. 1031

The same rule was announced and applied in the case of

Fitzgerald vs. Colorado Life Ins. Co. (Kas.) 116 S W (2d) 242

“Applicant need not scrutinize blank submitted to

him by soliciting agent as being proper blank for appli-

cant to sign to make contract of insurance effective,

but applicant may rely upon positive representations

of agent.”

Clark vs. National Aid Life Assn. (Okl.) 57 Pac.

(2d) 832 ,

Next we come to consider the effect of the unqualified

acceptance of the application on December 1, 1949, about

a week after the company had cashed the first “Premium

Payment” check and converted the proceeds thereof to its

own use.

A contract of insurance becomes effective upon the ac-

ceptance of the premium by the company and the acceptance

of the application, notwithstanding the policy may, accord-

ing to its terms, take effect at a later date.

Life and Casualty Ins. Co. of Tenn. vs. Palmer, 48

Ga. App. 380 (2)

In the instant case it was alleged that prior to the accept-

ance of the application by the company, and therefore at

the time of the acceptance of the application by the com-

pany, there remained nothing for the applicant to do to

effectuate the insurance.

“A contract of life insurance is consummated upon

the unconditional written acceptance of the application

: “|. , When the application is accepted and

nothing remains for the applicant to do, the contract

becomes complete.

“It (the insurance company) would have been

guilty of no breach of trust in appropriating the fund

to its own use. For this privilege, it thus acquired there

must have been a corresponding benefit accruing to

the original owner of the fund; and what he acquired

in lieu of his money was an insurance upon his life,

and a right to the policy which evidenced the con-

summation of the contract.

“This owner had a right to demand possession of it.

Upon refusal, he could have recovered it by an action

of trover. Conceding this right, we cannot see how

death can rob the beneficiary of her rights under

the contract.”

New York Life Ins. Co. vs. Babcock, 104 Ga. 67,

73-74

It cannot possibly be denied, nor even questioned, that

the petitioner and the deceased were entitled to the policy

on December 1, 1949, and that it would have been delivered

to them on that date had they gone to the company’s home

office in South Carolina and requested it.

This being true, petitioner is entitled to have the follow-

ing equitable maxim enforced in her favor:

“Equity considers that done which ought to be done

and directs its relief accordingly.” :

Sect. 106, Title 37 1933 Code of Georgia Annotated

ANS Sata cab ieee eee a

It is true that a policy of insurance in Georgia is required

to be in writing:

“The contract of fire insurance is one whereby an

individual or company, in consideration of a premium

paid, shall agree to indemnify the assured against loss

by fire to the property described in the policy, accord-

ing to the terms and stipulations thereof. Such con-

tract, to be binding, shall be in writing; but delivery

shall not be necessary if, in other respects, the contract

shall be consummated.”

Sect. 801, Title 56, 1933 Code of Georgia Annotated

By another Code section this rule is made applicable to

all types of insurance.

The requirement that the policy of insurance be in

writing does not apply to any count of the petition except

Count I.

Count II is an action for breach of promise or agreement

to insure, and, therefore, it recognizes that no policy was

issued and sets forth that there was an agreement to do so,

and the failure to do so according to the agreement is

grounds for recovery of damages.

Likewise, Count III recognizes that no policy was issued

and is strictly an action for unreasonable delay in passing

on the application.

In Count IV the requirement that the policy be in wsit-

ing was met, in that the policy identically as agreed upon

between the deceased and the company’s general agent was

actually issued in writing. The written policy was dated

December 5, 1949, and this count prays for reformation of

the contract so as to make it read as effective November 15,

1949, the date agreed upon by and between the general

agent and the deceased, or December 1, 1949, the date of

the unqualified acceptance of the written application.

With respect to the requirement of the policy being in

writing, as to Count I, the law appears to be that where the

facts authorize it, the court can decree specific perform-

ance, compel the contract to be considered executed at the

time justified by the facts, and grant a recovery on the policy

in the same action.

“ «The insured may bring an action at law upon the

preliminary contract in the same manner as upon the

policy. He may, however, treat the contract as an agree-

ment to insure, and resort to a court of equity to com-

pel the delivery of a policy either before or after the

happening of the loss; and being properly in that

court after the loss has happened, it is according to

established course of procedure, in order to avoid de-

lay and expense to the parties, for that court to proceed

and give such final relief as the circumstances of the

case demand. . . If the parties have entered into a

preliminary agreement for insurance, the insurer is

bound in good faith to furnish a policy in the usual

form and with the usual clauses. If the policy does not

conform to the previous agreement, the applicant may

refuse to accept it, and recover back any money he

may have paid in the premiums; or if he has accepted

it, supposing it to conform to his contract with the

insurer, a court of equity will reform it in a proper

case.’ 16 Am. & Eng. Enc. Law, 853.”

Fort Valley Coca Cola Co. vs. Lumbermen’s Co.,

69 Ga. App. 120, 125.

It was alleged that it would be a fraud upon petitioner to

permit the company to accept her and her husband's funds

on the representations of the company’s agent and not be

responsible to her on the agreement for which the funds

were given and accepted. Otherwise, as was held in New

York Life Insurance Co. vs. Babcock, supra., it would be

guilty of a wrongful conversion of the funds. Pursuant to

the agreement of the general agent, that the insurance would

be in effect on November 15, 1949, if the company cashed

the first premium check, the petitioner and her husband

forewent obtaining other contemplated insurance when

they ascertained that the check had been cashed. These facts

warrant specific performance under the law of Georgia.

“Where the law requires a contract to be in writing,

equity will grant relief, if the party complaining has

so acted on the parol contract as that it would be a

fraud upon him to permit the other to deny the con-

tract. But in such cases, the act must be in pursuance

of the contract, on the faith of it, and induced by it.”

Simonton, Jones & Hatcher vs. The Liverpool, Lon-

don and Globe Insurance Co., 51 Ga. 77 (2)

This rule is of universal application.

“An insurance company is bound by the acts of its

agent, whether general or special, which are within

the scope of his real or apparent authority, notwith-

standing that they are in violation of private limitations

upon his authority of which the person dealing with

him, acting in good faith, has no knowledge.’

“Where insurer's soliciting agent had apparent au-

thority to accept application, and applicant for acci-

dent policy, some eight days before her accidental

death, had acted upon such apparent authority with-

out notice to the contrary, to her detriment, benefi-

ciary was entitled to specific performance of the al-

leged oral contract, notwithstanding that soliciting

“f

agent was the general agent and did not have real au-

thority to make oral contracts for insurance.”

Hahn vs. National Casualty Co. (Idaho), 136 Pac.

(2d) 739

“When a preliminary contract for insurance is valid

it may be enforced in a court of equity against the com-

pany, and being enforced by the procurement of a

policy, an action can be maintained upon the instru-

ment; or the court in enforcing the execution of the

contract may enter a decree for the amount of the in-

surance.”

Insurance Company vs. Colt. 20 Wall. 560 (3), 22

L. Ed. 423

_‘. . . . Where the policy would have been binding

if it had been issued, the agreement to insure will be

held binding. Such an executory contract may be oral,

although the statutes or the charter or by-laws of the

insurance company provide that policies shall be in

writing, or prescribe the mode of executing them.”

32 C. J., Sect. 182, p. 1098

“It is well settled that a contract to insure or to

deliver a policy of insurance may be specifically en-

forced even though a loss has already occurred, where

there was a valid agreement before the loss; and in

the latter case, the court having acquired jurisdiction

of the cause, will retain it for the purpose of adjusting

the loss and awarding damages. . . . .

58 C.J. Sect. 297, p 1054

The right of reformation of an insurance policy which is

3 Fan

dated a different date from that agreed upon or implied

by law is recognized and applied in Georgia.

“Equity has jurisdiction to reform a written instru-

ment, where there has been ignorance or mistake on

the part of one of the parties accompanied by fraud,

or inequitable conduct on the part of the other party.

If the fraud or inequitable conduct complained of con-

sists of an alleged misrepresentation of fact, it is im-

material whether the party making the misrepresen-

tation of fact knows it to be false or not; it is nonethe-

less fraud in law, even though not fraud in fact.”

Wellborn vs. Johnson, 204 Ga. 389

This rule is likewise recognized as the authority by Wil-

liston in his work on contracts.

“Some decisions hold that the parol evidence rule

forbids enforcement of the parol waiver contemporan-

eous with the creation of a written contract. . . . .

“Most decisions, however, support the right of the

insured to recover, and to most minds these decisions

will seem preferable if their result can be reached

without wrenching legal principles. Most of the cases

so deciding speak ofestoppel, . . . .......~.,

Two other principles have been invoked to explain,

at least partially, the conclusion of the majority of the

decisions: fraud and reformation of contract. The con-

duct of the insurer is not generally intentionally fraud-

ulent, but to take money as a premium in return for

a promise which the insurer must be held to know

is invalid may fairly be regarded as a fraud in law by

a court which does not require as an invariable requi-

site of fraud or deceit that an actual wrongful intent

should exist, if the transaction is fraudulent the ques-

‘tion then arises as to the remedy of the defrauded —

party.

“The other explanation suggested for allowing the

plaintiff to recover is that the contract should be re-

formed in equity to express the real intention of the

. parties and that as a short cut an action at law on the

policy is permitted on evidence being given that would

warrant reformation.” 7

Willison on Contracts, Revised Edition, Vol. 3,

Sects 747, 748, 749, 750, pp 2120, 2123, 2124, 2125,

2126

It is also recognized that in such cases as the instant case —

an action may be brought for specific performance of the

agreement to insure, as in Count I, or for breach of con-

tract to insure.

“Where insurer received application for insurance,

together with premium thereon, implied promise is

thereby created on the part of the insurer to act on

application within reasonable time, and insurer may

be held liable for breach of implied promise, or appli-

cant may waive contract and sue in tort for negligence

on insurer's failure to act within reasonable time.”

Travelers Ins. Co. vs. Taliferro (Okla), 54 Pac. (24)

1069

“The failure on the part of the insurer to deliver the

policy in accordance with the agreement at the time

stipulated or within a reasonable time will render him

liable in an action for breach of contract, or to a suit

in equity for specific performance.

“Indeed, no citation of authorities is necessary to

support the proposition that damages may be based

upon a broken promise to insure.”

National Liberty Ins. Co. of America vs. Jones (Va.)

183 S. E. 443

Next we come to consider, with respect to Counts I and

IV, whether the provisions in the application requiring

issuance and delivery of the policy during the life and

sound health of the deceased can be availing to the insurance

company as a defense.

The company admits that if the policy had been issued

prior to the death of the deceased the application would not

have been attached, nor would any provision requiring

issuance or delivery of the policy during the life and sound

health of the deceased been in the policy itself.

This being true, and no delivery of the policy being

required as a condition precedent to its binding effect

under the law of Georgia, unless so stipulated in the policy

itself or an attached application, the defendant company

cannot insist upon issuance or delivery of the policy as a

defense.

Delivery of the policy is not required by law:

“. . . . Such contract, to be binding, shall be in

writting: but delivery shall not be necessary if, in other

respects, the contract shall be consummat

Section 801, Title 56, 1933 Cole of Georgia Annotated

“Actual delivery of the policy to the insured is not

essential to the validity of a contract of life insurance,

unless expressly made so by the terms of the contract.”

New York Life Ins. Co. vs. Babcock, 104 Ga. 67 (2)

The policy of insurance itself, which is sued on in Count

IV, wherein reformation is prayed, and which is prayed to ©

be décreed in effect by decree of specific performance in

Count I, does not have any requirement of issuance or

delivery in it.

; The provision of issuance and delivery in the application

: is unenforceable and nugatory as a defense because the

: application is not attached to the policy dated December

5, 1949, and would not have been attached had the policy

been issued and dated December 1, 1949, or previously.

“All life insurance policies issued upon the lives of

persons within this State, whether issued by companies

organized under the laws of this State or by foreign

companies doing business in this State, which contain

any reference to the application for insurance, or the

constitution, by-laws, or other rules of the company,

either as forming part of the policy or contract between

the parties thereto or having any bearing on said con-

tract, shall contain, or have attached to said policy, a

correct copy of said application signed by the applicant,

and of the constitution, by-laws, and rules referred to

and unless so attached and accompanying the policy,

no such application, constitution, by-laws or rules shall

be received in evidence either as part of the policy or

as an independent contract in any controversy between

the parties to or interested in the said policy, nor shall

such application, constitution, by-laws, or rules be con-

sidered a part of the policy or contract between such

parties.’

Sect. 904, Title 56, 1933 Code of Georgia Anno-

tated

This statute has been repeatedly held as meaning exactly

what it says:

‘A stipulation in an application for insurance, where-

by it is agreed between the insured and the insurance

company that the agent of the company has no author-

ity to waive or dispense with full, true and complete

answers to the questions contained in the application,

may not, when the application is not attached to the

policy, serve as notice to the insured of the limitation

of the agent’s authority. To allow it to so serve would

be in contravention of Code Sect. 56-904, requiring

the application to be attached to the policy before it

may be introduced as a part of the contract of insur-

ance or as an independent contract in any litigation

between the parties interested therein.” (Emphasis

ours.)

Gulf Life Ins. Co. vs. Bloodworth, 73 Ga. App. 102

The following cases apply the same rule:

Torbert us. Cherokee Ins. Co., 141 Ga. 773 (1)

Mutual Benefit Health & Accident Assn. vs. Bell,

49 Ga. App. 640, 643, and_ cases cited.

On December | there was nothing left for the defendant

to do except fill in the blanks in its policy form. Had this

been accomplished, on December 1, 1949, but the policy

dated December 5, 1949, it would still be binding as of

December 1, 1949.

Life and Casualty Co. of Tenn. vs. Palmer, 48 Ga.

App. 380 (2)

In the following Georgia case the facts were that the life

policy application stated: “The insurance applied for shall

not be binding on the company until the amount of the

first premium shall be received in cash by said company

or by some authorized agent thereof, during the lifetime of

the applicant. . .” The applicant forwarded the premium

to the soliciting agent at the time the application was made

but the agent refused it; and the agent refused to deliver

the policy later or accept the premium payment because the

applicant was then sick.

“Held, that on a bill filed for the recovery of the

amount of the policy, equity will consider that done

which ought to have been done. That under the cir-

cumstances it was the duty of the agent of the insur-

ance company, who had received the policy from the

company as the agent also of the applicant, and who

had himself waived the payment of the premium when

the application was made to him and had assured him

that he would be insured any how, and had agreed

to make the application for him, and had written to

him that the policy was issued and ready for him, and

he would deliver it the next week, to comply with his

promise and to deliver it on payment of the premium

by the applicant or his agent; and that it would be in-

equitable for the insurance company to refuse to pay

the amount of the policy under these circumstances.”

The Southern Life Ins. Co. vs. Edward T. Kempton,

56 Ga. 339

Therefore, it appears that petitioner is entitled to both

specific performance and reformation, and it necessarily

follows that she is entitled to a recovery.

Count II presents a factual question, requiring a jury —

determination, of whether under the circumstances there —

was an implied acceptance of the applicant during his

lifetime, due to the conduct of the company and its general

agent.

“It is the general rule that mere delay in passing

upon an application for insurance is not sufficient in

and of itself to amount to acceptance even though the

premium is retained. Misselhorn vy. Mutual Reserve

Fund Life Assn. C.C., 30 F. 545; 32 C. T. 1106. But

an acceptance may be implied from retention of the

premium and failure to reject within a reasonable time.

] Joyce on Insurance, Sect. 57; Richmond v. Travelers’

Ins. Co., 123 Tenn. 307, 180 S W. 790, 30 L.R.A.,.N. S.

“A strong decision in support of the present view

is Douglass v. Mutual Benefit Health & Accident Assn.,

42 N. M. 190, 76 P. 2d 453. This was an action on an

accident and health policy involving facts very similar

to those presented here. The soliciting agent there

informed the applicant that the policy would be in

effect as soon as the application and premium were

received at the home office. The court held that the

company was required to return the premium with-

out unreasonable delay if the application was rejected,

with notice of that fact, and sustained a recovery based

upon an implied acceptance of the application. A

similar holding was made in a life insurance case, Reck

v. Prudential Ins. Co. 116 N.J.L. 444, 184, A. 777,

cf. Peoples Life Ins. Co. vs. Whiteside, 5 Cir. 94 F. 2d

409; Williams vs. Home Ins. Co., 102 Kan. 74 169 P.

545; Phoenix Ins. Co. v. Hale, 67 Ark. 433, 55 S. W.

486.”

American Life Ins. Co. of Ala. vs. Hutcheson, 109

F. (2d) 424,427, 428

There appears to be no direct authority in Georgia on

this particular point, as is the case with respect to questions

presented in Count III, although the following Georgia

cases certainly indicate that the Georgia courts would up-

hold this contention of petitioner.

“Where a member of a mutual insurance company

pte hee gas ee ¥ pikes 5

fails to meet the assessments made upon him but sub-

. sequently transmits to the secretary thereof an amount —

of moriey in payment of all dues then demanded of

him, which sum the company retains until after his

death without notifying him whether it was satisfac-

tory or not, such action was a waiver of the default

and restored him to membership.”

Georgia Masonic M utual Ins. Co. vs. Gibson, 52 Ga.

640 (3)

“In our opinion the acceptance of the premiums

and placing the money in the general funds of the de-

fendant amounted to such an unconditional accept-

ance as to estop the defendant to contend that the policy

was not in force at the date of the fire.”

Progressive Fire Ins. Co. vs. Morrison, 72 Ga. App.

473,482

The policy issued by the defendant, which was dated

December 5, 1949, was identical with that which the de-

ceased unconditionally agreed to accept on November 15,

when he and petitioner paid their money for the policy.

On page 1, this policy actually issued recited that it insures

the defendant from December 5, 1949, for one month. On

page 4, Section 3, under “General Provisions,” it is stated:

“This policy cannot be cancelled for the term which the

premium has been paid.” (R., pp 49, 52.)

The check of the plaintiff and the deceased, which was

dated November 15, 1949, and which the defendant cashed

on November 25, 1949, is contended by the defendant as

being payment of the premium for “the term” commenc:

ing December 5, 1949. The petitioner contends that the

check was payment for “the term” commencing November

15, 1949, or at least not later than the term commencing

November 25, 1949, the date the check was cashed. The

check had printed on it: “Premium Payment. The Execu-

tive and Professional Accident Policy.”

We submit that these two clauses, under the facts of the

case, subject the policy to a construction with respect to

what is meant by “the term.” The policy nowhere, except

in this Section 3 under General Provisions, on the last page,

uses the words “the term.”

In cases of possible construction the Georgia courts have

consistently and repeatedly held that that construction will

be taken which enures to the benefit of the insured, or

beneficiary, and works to the detriment of the insurance

company.

“In determining whether under the terms of the

contract of insurance the policy had lapsed at the time

of the accident in question (or, in the instant case, had

commenced at the time of the loss) , there being a con-

flict in its provisions as to when the insurance became

of force, the provision most favorable to the insured

must control. . . .”

Parham vs. National Relief Assurance Co., 33 Ga.

App. 59

“Insurance policies are prepared and proposed by

the insurer; and where such a contract is capable of

being construed in two ways, that interpretation must

be placed upon it which is most favorable to the in-

or, EE: ” (Emphasis ours.)

State Mutual Life Ins. Co. vs. Forrest, Admrx., 19

Ga. App. 296 (1)

Following this rule are the following cases:

United National Ins. Co. vs. Cody, 81 Ga. App. 527

Mass. Benefit Life Assn. vs. Robinson, 104 Ga.

256 (2)

Count III

There is no direct Georgia law for precedent in determin-

ing the questions in this count.

The Circuit Court of Appeals for the Fifth Circuit, citing

no authority whatsoever, and making no attempt at all to

ascertain how the Georgia courts would determine the

questions if presented to the Georgia courts, held that,

as a matter of law, this count was without merit.

This is clearly contrary to the decisions and previous man-

dates of this Court.

“In view of the fact that the question in the case

was regarded below, both by the courts and by counsel,

as one of ‘general’ or ‘Federal’ law, thie interest of jus-

tice requires that the judgment be vacated and the

case remanded for the enforcement of the applicable

principle of state law.”

Ruhlin vs. New York Life Ins. Co., 304 U.S. 202,

82 L. Ed. 1290.

Though not applying the above rule of this Court, the

Circuit Court of Appeals for the Fifth Circuit has recog:

nized this rule in another case. a

“The command of Erie Railway Co. vs. Tompkins,

304 U. S. 64, is that the ultimate results reached in

litigation in the Federal courts, predicated upon causes

of action arising from the State law, must be the same

as if the litigation had been conducted in the State

courts. While the Federal court should properly em-

ploy its own rules of procedure to secure the just, effi-

cient and prompt determination of all claims inherent

in any litigation before it, nevertheless, the ultimate

results reached must be such as accord with the sub-

stantive jurisprudence of the state of the forum. Thus,

if there be no directly applicable state authority, the

court must ascertain for itself what would be the dec-

laration of the state law by the state courts in such a

situation as confronts it.”

Likenhoger vs. Owens, 181 F. (2d) 97, 99 (5th Cir.)

Two Circiut Courts of Appeals have held directly in con-

flict with the decision of the Circuit Court of Appeals in

this case on the same subject matter.

“An insurer may be held liable in tort for damages

to life policy applicant, where there has been unreason-

able delay in acting on application, since business of

life insurance is affected with public interest and in-

surer is bound to furnish indemnity State has author-

ized it to furnish or to decline to do so within such

reasonable time as will enable applicant to act intelli-

gently upon rejection.

“Generally mere delay in passing upon life insur-

ance application is not sufficient to constitute accept-

ance of application, even though premium is retained,

but acceptance may be implied from retention of

premium and failure to reject within reasonable time.

“The case is governed by the law of Tennessee.

Erie Ry. Co. vs. Tompkins, 304 U. S. 64.

“No insurance decision in Tennessee is found pre-

cisely in point upon these facts.

“The judgment (in favor of the wife beneficiary of

the husband insured) is affirmed.”

LPARAM

American Life Ins. Co. of Ala. vs. Hutcheson, 109 F,

(2d) 424 (6th Cir. Certiorari denied 310 U. S. 625,

84 L. Ed. 1397)

In that case the Sixth Circuit Court of Appeals could

find no Tennessee decision to uphold the verdict and judg-

ment and looked elsewhere and cited authority to support

its decision from the courts of eleven states, Corpus Juris

and several Federal court cases.

The Circuit Court of Appeals for the Seventh Circuit

states the rule of law that an action lies for unreasonable

delay in passing on an insurance application so emphati-

cally as to leave no question.

“It is equally well settled that an insurance com-

pany may be liable for its delay in passing upon an

application for insurance.” (Citing cases.)

Behnke vs. Standard Accident Insurance Co., 41 F.

(2d) 696, 699 (7th Cir.)

The Circuit Court of Appeals in its judgment in this case

: held that the provisions in the application requiring issu-

' ance and delivery were a bar to recovery on this count. This

action is for tort and no provision in the application could

possibly be a defense to this count. If anything, the provi-

sions of the application concerning delivery placed a greater

burden on the company to speedily pass on it, particularly

when the applicant was contemplating obtaining other in-

surance in the event of a rejection of his application.

q “It is alleged further that under the policy the com-

a pany was being paid for insurance from the time of the

{ application though it did not become effective until

the policy had been ‘delivered to and received by the

applicant during his lifetime and in good health,’ be-

cause of these conditions the company owed a duty to

the applicant to use reasonable care and diligence in

passing upon the application and in the execution and

delivery of the policy. . . .

“The cause of action being for damages resulting

from the defendant's neglect to act promptly in con-

sidering the application, and in the issue and delivery

of the policy there is no occasion for considering wheth-

er or not the policy was delivered as required by the

contract, of which question the briefs contain an ex-

tended discussion.” (Emphasis ours.)

DeFord vs. New York Life Ins. Co., 224 Pac. 1049,

1050-51

All of the cases upholding an action for unreasonable de-

lay hold that insurance is affected with the public interest

and the company must use reasonable diligence in passing

on the application for insurance.

It has been held by the courts of Georgia that insurance

in Georgia is affected with the public interest.

“The business of insurance is one so clothed with a

public interest, affecting the community at large as

to render it peculiarly subject to proper governmental

regulation. German Alliance Ins. Co. vs. Lewis, 233

U.S. 389, 58 L. Ed. 1011.”

Cooper Co. of Gainesville vs. The State, 187 Ga. 497,

500

“Of course, being affected with the public interest, its

(insurance company’s) business operations were subject

to regulations prescribed by the laws of this State as a con-

dition upon which the right to do business was granted.”

Bankers Life & Casualty Co. vs. Cravey, Comptroller

General, etc., Supreme Court of Georgia Decision

No. 17687, decided January 29, 1952 (Not yet re-

ported in official reports.)

In the case at bar eighteen days elapsed between the date

of the application and the death of the applicant, and no

direct notice or rejection or acceptance was given petitioner

or her husband in the meantime.

In the following cases the question of delay in passing

on the application was properly held a question of fact

for the jury, and the verdicts for the plaintiff were upheld:

American Life Ins. Co. of Ala. vs. Hutchinson, 109

F. (2d) 424, 16 days involved.

DeFord vs. New York Life Ins. Co., 77 Colo. 146,

224 Pac. 1049, 1050-51 18 days involved.

Witten vs. Beacon Life Assn. (Kan.), 33 S.W. (2d)

989, 13 days involved.

Douglass vs. Mutual Benefit Health & Accident

Assn. (N. Mex.) 76 Pac. (2d) 452, 2 days involved.

In the absence of applicable local laws, Federal courts are

authorized and should look elsewhere for the rule to be

applied in determining how the local State courts would

decide the question.

“In the absence of local authority, Federal court

may rely on general statement of the law.”

Hornstein vs. Cramer Bros. Freight Lines, Inc., 133

F (2d) 143 (3rd Cir.)

“In the absence of any applicable local law, a Fed-

eral court is free to apply general law as most likely

comporting with the local state’s outlook.”

Zephyr American Corp. vs. Bates Mfg. Co., 128 F.

(2d) 380 (25) (3rd Cir.)

“Federal court, in absence of any applicable local

law, is free to apply general law as most likely comport-

ing with local state’s outlook.”

Chidester us. City of Newark (Dist. Ct. of N. J.),

58 Fed. Supp. 787, following Zephyr American,

supra.

“Where Illinois law had not been declared on state

of facts alleged in complaint arising under Illinois con-

tract, Circuit Court of Appeals was free to look else-

where for rule of law that ought to be applied.”

Fargo Glass & Paint Co. vs. Globe American Corp. ie

161 F. (2d) 811 (7th Cir.), citing:

Shell Oil Co. vs. Manley Oil Corp., 124 F. (2d) 714

(7th Cir.)

Following is additional authority that the questions pre-

sented in this count are jury questions:

‘What is a reasonable period depends on the facts

in each case.

“When the reasonable period expired and the in-

surer failed to communicate its rejection to applicant

and also failed to return the amount paid with the

application, applicant may assume, at least for a time,

that the application has been accepted, and the insurer

will be liable for the loss resulting from applicant's

failure to attempt to place the insurance elsewhere, in

reliance on his assumption of acceptance. . .”

44 C.J.S., Sect. 232, pp. 987.

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“notice to the applicant of the rejection of the appli :

cation is necessary where it is the understanding or

agreement between him and the agent that insurance

is effective unless disapproved or rejected by the com-

pany.”

32 C.J., Sect. 196, p. 1107

‘‘An insurer has the duty to act upon an application

for life insurance with reasonable promptness and to

refrain from doing anything reasonably calculated to

mislead the applicant.”

Keller vs. Provident Life & Accident Ins. Co., (S.C.)

49 S.E. (2d) 577

“What was the reasonable time within which the

premium could be returned and the applicant thus

apprized that the insurance had been declined would

be a question of fact to be determined in the particular -

case . . . Norcould the death of the insured within

two days of the application and delivery of the receipt,

as contended for by the appellant, affect the result.”

Douglas vs. Mutual Benefit Health & Accident Assn.

(N. Mex.), 76 Pac. (2d) 453, 460

“Where insurer accepted and retained life policy

premium, received medical examination report on ap-

plicant on October 12, and on October 14 requested

another blood pressure test to be taken, whether in-

surer unreasonably delayed its action on application

so that acceptance was implied, and policy was in force

on date of insured’s death, which occurred on October

26, was for jury.”

American Life Ins. Co. of Ala. vs. Hutcheson (6th

Cir.) 109 F. (2d) 424

It is contended once this Court takes jurisdiction of this

_ tax all questions propounded should be determined by this

Court. Consequently, we shall point out the right of the

petitioner to maintain this count in her own individual

name. The District Court, though as obiter dictum and not

considered by the Circuit Court of Appeals, held that the

petitioner could not maintain this count in her individual

name.

It must be borne in mind that it was the joint funds of

petitioner and her husband that the defendant appropri-

ated to its own use when it cashed the check for the first

premium; that petitioner was named as the sole beneficiary

in the application and that petitioner was the only person

who could suffer if her husband met accidental death with

no insurance protection in force. Petitioner had a property

right in the application and in the funds that the defend-

ant appropriated to its use.

“As a general rule, the action on a contract, whether

express or implied or whether by parol or under seal,

or of record, shall be brought in the name of the party

in whom the legal interest in such contract is vested,

and against the party who made it in person or by

agent. The beneficiary of a contract made between

other parties for his benefit may maintain an action

against the promisor on said contract.”

Sect. 108, Title 3, 1933 Code of Georgia Annotated

“An action for a tort shall, in general, be brought

in the name of the person whose legal right has been

affected, and who was legally interested in the prop-

erty at the time the injury thereto was committed, and

against the party committing the injury, either by him-

self, his servant, or agent in his employment.”

Sect. 109, Title 3, 1933 Code of Georgia Annotated

iacechanenel sag ges

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Papi rao at

"Certainly petitioner had a legal right that was affected.

In the absence of unreasonable delay the policy would have

been in her hands at the time of her husband’s death, and

there would have been no question of liability.

Moreover, there can be no doubt that petitioner has a

legal right to maintain an action in her own name for

breach of the promise to insure, as set out in Count II.

Under the law of Georgia, she has a right to bring an action

in tort for this breach of a duty created by contract, express

or implied.

“If a contract imposes a legal duty upon a person,

the neglect of that duty is a tort founded upon a con-

tract. In such a case, the liability arises out of the breach

of duty incident to and created by the contract, but is

only dependent upon the contract to the extent neces-

sary to raise the duty. The tort consists in the breach

of the duty.”

The City & Suburban Ry. of Savannah vs. Brauss,

70 Ga. 368 (1)

This rule of law is also set forth in the following cases:

Payne vs. Watters et al., 9 Ga. App. 265 (2nd case)

Lea vs. Harris, 88 Ga. 236

L. & N. Ry. Co. vs. Spinks, 104 Ga. 692

State Mutual Life Assn. vs. Baldwin, 116 Ga. 855,

860

Postal Telegraph & Cable Co. vs. Kaler et al. 65 Ga

App. 641

Therefore, petitioner has the right to prosecute thi

count oh the ground that she has a property right in the

subject matter and the funds that were accepted by the

“defendant company, and because insurance in Georgia is

‘affected with a public interest, and insurance companies

“must use diligence in passing on an application for insur-

“ance; also, because of the breach of the agreement to insure.

Petitioner can maintain this tort count in her own name

‘on the grounds that the tort grew out of the breach of the

duty created by the agreement.

CONCLUSION

It is respectfully submitted that this Court should grant

the writ of certiorari 1: this case and review all of the ques-

tions presented.

Although the Circuit Court of Appeals for the Fifth

Circuit failed to attempt to ascertain what the courts of

Georgia might do with the question presented in Count III,

and this alone would require a reversal and the remanding

of the case to that court for a determination of what the

Georgia courts would decide, we respectfully urge this

Court to review the entire record and adjudicate the cor-

rectness of petitioner's contentions that the Circuit Court

of Appeals erred with respect to Counts I, II and IV, and

also determine the applicable law of this case with respect to

Count III.

Respectfully submitted,

J. J. Frynt, Jr.

P. O. Box 103

Griffin, Georgia

WALLACE MILLER, JR.

515 Persons Building

Macon, Georgia

Miter, MILLER & MILLER

: Attorneys for Petitioners

515 Persons Building

Macon, Georgia

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Statement of the Case

sinions of District and Circuit Courts

and Argument

Importance of Questions and Reasons

Relied on for Allowance of Writ

(1) The Decision of the Circuit is not in

Conflict with the Decision of other Circuits

(2) No Conflict with Georgia Decisions

e itioners Real Reasons for Asking Issuance of Writ

Ge nts I, Il and IV

No Recovery on Tort Theory (Count III)

Conclusion

Page

LIST OF CASES CITED

Americn Life Ins. Co. of Alabama vs. Hutcheson,

10$ F. (2d) 424 (6th Cir.) (Certiorari denied

314 Uy. S. 625; 84 L. Ed 1397)

Behnke ¢ aj vs. Standard Accident Ins. Co. of

Déyoit, Michigan, 41 F (2d) 696 (7th Ciruit)

Boswell ys/ Gulf Life Ins. Co., 197 Ga. 269 ()),

272 29S. E.2nd71 .

Bradley ys Federal Life Ins. Co., 129 N. E. 171;

15a. L. R. 1021, 1024 ek Cvs

Code 0: Georgia, Section 3-505

Code 0! Georgia, Section 56-911

Code 0! Georgia, Section 58-213 .

Code 0! Georgia, Section 105-101 .

Code 0! Georgia, Section 105-103 .

DeFordys. New York Life Ins. Co., 75 Colo. 146 P. 1049, 1050 .

Duffie ys. Bankers Life Asso., 160 Iowa 19; 139

N.W. 1087; 46 L. R. A. (N.S.) 25 .

Fowler ys. Liberty National Ins. Co., 73 Ga. APP.

76!, 770 (4); 38S. E. 2d 60 .

Fowlerys, Preferred Accident Ins. Co., 100 Ga. 330

(13), 331-384 ;28 S. E. 398 .

Frazietys. Ga. Railroad, 101 Ga. (1); 28 S. E. 662

Genera Talking Pictures Corporation vs. Western

Elctric Company, Inc., 304 U. S. 175, 178;

58S. Ct. 849; 82 L. Ed. 1273

Georgi Kaolin Co. vs. Walker, 54 App. 742, 746-47 .

Gidditys vs. Ins. Co., 102 U.S. 108, 111; 26 L. Ed. 92 .

Home ins. Co. vs. Swann, 34 App. 19 (2), 24,25 .

_ Johnson vs. American Nat. Ins. Co., 5 tO ‘ie 801,

3; 68 S. E. 731

"Knight vs. Superior Fire Ins. Co., 80 Fed. 2d 311 GCCA)

Lane & Bowler Corp. vs. Western Well Works, 261

U. S. 387, 393; 67 L. Ed. 712, 714 .

Life & Cas. Co. of Tenn. vs. Carter, i Cu Ave:

622, 626; 191 S. E. 153; Affmd. 185 re

746; 196 S. E. 415 eh

Maddox. vs. Life & Cas. Co., 79 Ga. App. 164, 176

(5); 53S. E. 2d 235 .

Metropolitan Life Ins. Co. vs. Brady (ind),

N. E. 99 ,100, 102-3. .

Pde: os Life Ins. Co., vs. Tharpe 20 Ga. App.

98S. E.299 . .

Mitchiner vs. Union Central Life mn ‘Cn 185

Ga. Rep. 194, 196; 194 S. E.530 . . . .

Munger vs. Equitable Life Assur. Soc. of the U. s.

é "3 Fed. Supp. 914 (1-2), 915-921 (Dist. Ct. W. Dist. Mo.)

National Union Fire Ins. Co. vs. School ee se

182 S. W. 547 (1, 3, 4) 548 . .

Newark Fire Ins. Co. vs. Smith, 176 Ga. Rep. 91 94.6;

167S.E.79.. . .

New York Life Ins. Co. vs. ‘Babcock, 104 Ca. 67 :

_ Newton vs. Gulf Life Ins. Co., 55 Ga. Seid $30, 332;

190 S. E. 69

Reese vs. Fidelity Mut. ‘Life we Co. im Ga.

eR: OB. Gs Be GBF oe be

Reserve Loan Life Ins. Co. vs. Philips, “156 Ga.

372, 376; 119S. E. 315 . eins

Ruhlin vs. New York Life Ins. Co., 304, U. s.

202, 82 L. Ed. 1290 . .

Savage vs. Prudential Life Ins. Co. a a: (Miss) ,

121 Southern Reporter 487 (2 and 3) 488-489

United States vs. Johnston, 268 U. S. 220, 45

S. Ct. 496, 69 L. Ed. 925 be tanhiae

Volunteer State Life Ins. Co. vs. McGinnis, 99 ine

App. 370-371; 115 S. E. 287. . .

Vuke Stray vs. Western Life Ins. Co., 300 Pacific

1046; 75 A. L. R. 950-952 bi

11, 16, 19

13, 19

IN THE SUPREME COURT OF

THE UNITED STATES

swiss DRM, 1962

MRS. PAULINE R. BURKS

Petitioner

vs.

COLONIAL LIFE & ACCIDENT INSURANCE

COMPANY OF COLUMBIA, SOUTH CAROLINA

Respondent

BRIEF OF RESPONDENT OPPOSING GRANT OF

WRIT OF CERTIORARI

STATEMENT OF THE CASE

In the statement of the case contained in the petition

for writ of certiorari, petitioner, the plaintiff in the court

below, undertakes to give in narrative form the allegations

of the four counts of her complaint and in the main it does

correctly set out substantially the allegations of these four

counts of her complaint. She does not undertake to give

any other summary of the evidence which was submitted i

to the court by the various affidavits of defendant's offic-

ets and employees, though she does include, as if it were

some of the allegations of the complaint, some of this evi-

dence and also some argumentative matter. We respectfully

Tefer the court to the complaint itself for its exact allega-

tions and in addition we set forth briefly the undisputed

facts given in evidence by the affidavit of defendant's offic.

ers and employees as follows:

David Halsey Burks, on November 15, 1949, signed an

application for accident insurance in the defendant com-

pany, copy of which application is attached to the com-

plaint as Exhibit C. Said application contained the follow.

ing provisions:

“I further agree that this insurance shall not be in

force until the application is accepted and the Policy

issued by the Company nor until the Policy is delivered

to and accepted by the applicant while in sound health

and free from injury.”

Said application was mailed by the agent on November

19 and received by the defendant at its home office on

November 21, 1949. In due course it was considered and

was on November 29 marked rejected, but was reconsid-

ered on November 30 or December | and marked “O.K.,

J.C.J.”. It was sent to the Policy Issuing Department of

defendant company either late Friday afternoon, Decem-

ber 2 or Monday morning, December 5, defendant's office

having been closed on Saturday and Sunday, December

3 and 4. A policy was prepared, dated and countersigned

on the morning of December 5, 1949, but before the usual

letter of transmittal of said policy had been written, and on

the same morning defendant was informed of the death

of the said David Halsey Burks on December 3, 1949. Said

policy was not mailed or delivered and remained in the

possession of defendant. On the same day December 5, 1949,

defendant wrote a letter to the estate of David Halsey

Burks enclosing defendant’s checks for $10.00 as a refund

of the deposit delivered to it to cover first premium, and

also enclosing eleven unused monthly checks which had

been delivered to it. The Company's check for $10.00 was

subsequently returned to it by plaintiff's attorney and was

thereafter continuously tendered to the plaintiff. (R.83-87)

The foregoing facts were set out in substance as state-

ment of facts by the District Court in its opinion in this

case (R.116-117) and were admitted and _ practically

adopted as allegations of the plaintiff in Count Four of her

complaint which was added by way of amendment at a

later date. In addition to these undisputed facts, plaintiff

alleges in her complaint, and the defendant denies in its

answer, that G. C. Poole, agent of the defendant company,

advised the applicant at the time of his application “that

if the Home Office cashed the check dated November 15,

1949, it would mean the company had accepted him and

his policy would be forthcoming and would be dated No-

vember 15, 1949.” It is further alleged by the plaintiff, and

denied by the defendant, that it was agreed between this

agent and the applicant that the check which was later

deposited was payment of a policy premium for the period

beginning November 15, 1949, for one month and that if

accepted he would be covered by insurance during that

period.

OPINIONS OF DISTRICT AND CIRCUIT

COURTS

The District Court in this case dismissed the complaint

on motion for summary judgment. It treated together

Count I (for specific performance) , Count II (for breach) ,

and Count IV (for reformation) , of the complaint, as being

dependent upon a valid, completed contract of insurance.

The opinion of thesDistrict Court is set out at pages 115-

126 of the record and was incorporated in full in the opin.

ion of the Circuit Court of Appeals (R. p. 138-145) . The

opinion of both of these courts as to Counts I, II and IV of

the complaint was squarely based on controlling decisions of

the courts of the State of Georgia and the statutes of that

state Count III of the complaint sought damages for the

alleged negligence of defendant in delaying in the issuance

of the policy. In dealing with Count III the District Court

recognized that there was no Georgia statute or case im-

mediately controlling on the right to sue an insurance com-

apny in tort because of such alleged delay. It recognized the

rule of Georgia courts as being the elemental rule that

there can be no tort without a breach of duty and that the

mere filing of an application for insurance did not impose

upon defendant any duty to act at all, much less promptly.

This amounted only to an offer which defendant might

accept, reject or leave unanswered. The District Court

therefore chose to follow what it considered the better rule

as laid down by cases from other jurisdictions and held that

there could be no tort, because no breach of duty, in such

circumstances. The District Court further held that it was

immediately controlled, as to Count III by the Georgia

statutes and decisions that lay down the rule that a right

of action in tort does not survive the death of the person

injured or damaged and that only he, in his life-time, can

commence on action for such a tort.

The Circuit Court of Appeals dealt with Counts I, Il

and IV by affirming that they were controlled in point and

principle by the Courts of Georgia and adopted the opin-

ion of the District Court as to those counts. It expressly re-

frained from approving or disapproving the opinion of the

District Court as to Count III alleging a right of action in

tort for the alleged delay in accepting the application or

the issuance of a policy. As to Count III (R. p. 142-5)

Judge Russell, speaking for the Circuit Court, said:

“While we fully recognize and give obedience to

the fundamental principle that the existence of negli-

gence and the determination of what constitutes a

‘reasonable time’ are generally for determination as

questions of fact upon consideration of pertinent cir-

cumstances, we are nevertheless of the firm opinion

that under the precise facts and circumstances of this

case a finding of negligence based upon reasonable

delay would not be legally supportable. The minds of

reasonable men could not differ on these facts. We are

therefore not required to determine, or to express it

more accurately, declare, the law of Georgia which

would be applicable if a factual basis for such finding

existed. The Georgia Courts do not appear to have

passed upon the question and, since we find at the be-

ginning of our consideration of it the existence of an

insurmountable bar to any recovery by the complain-

ant a discussion of the legal merits, otherwise, of this

claim could be only academic. We therefore refrain

and, setting forth the trial Court’s opinion upon this

feature of the case only for the purpose of complete-

ness of quotation, place our decision of affirmance of

the ruling of the trial Court upon the third count of

the complaint upon the grounds which we have

stated.”

Through her petition for writ of certiorari and support-

ing brief, we think that petitioner indicates a misconcep-

tion of what the Circuit Court referred to as constituting

“an unsurmountable bar to any recovery by the complain-

ant’. Petitioner says the Court could only have been refer-

ring to the requirement in the application that the insur-

ance shall not be in force until the policy is delivered to

and accepted by applicant while in sound health. We submit

that the Circuit Court referred to its decision on the facts

that “under the precise facts and circumstances of this case

a finding of negligence based upon reasonable delay would

not be legally supportable”. This is the only point de-

cided by the Circuit Court as to Count III.

BRIEF AND ARGUMENT

Importance of Questions and Reasons Relied

on for Allowance of Writ

Petitioner seeks to bring the questions involved within

the suggestions of Supreme Court Rule 38; paragraph

5 (b), contending that the decision of the Circuit Court

was: (1) in conflict with decisions of two other circuits

as it concerned Count III and, (2) in conflict with decisions

of the courts of Georgia as to Counts I, II and IV.

(1)

The Decision of the Circuit Court does

not conflict with Decisions of other Circuits

Petitioner contends the decision as respects Count III is

in conflict with these two decisions of other circuits, towit:

American Life Ins. Co. of Alabama vs. Hutcheson,

109 F. (2d) 424 (6th Cir.) (Certiorari denied 310

U. S. 625; 84 L. Ed. 1397)

Behnke et al. vs. Standard Accident Ins. Co. of

Detroit, Michigan, 41 F. (2d) 696 (7th Circuit)

In the Hutcheson case any decision on the tort theory

was obiter for the recovery allowed was on an implied

contract and was squarely based on decisions for the Courts

of Tennessee, where the Federal Court was sitting.

In the Behnke case the 7th Circuit followed the law of

Wisconsin which holds that an oral contract of insurance

is valid (in Georgia such a contract must be wholly in

writing) . The Court went on to hold, in headnote 7, that

in that case as a matter of law, the insurance company was

not negligent under the facts alleged and proved.

In the Behnke case the decision was exactly to the same

effect as in the instant case and obviously could not be in

conflict with it. In the instant case the Circuit Court re-

fused to rule on whether such a tort action would lie but

held that even if it would lie no jury question was presented

by the facts alleged and proved as to the supposed delay.

This could not be in conflict with the Hutcheson case or

any other case which had ruled on the question of whether

there could be a right of action asserted in tort in such cir-

cumstances. Whether in a given case the pleadings and

evidence are sufficient to carry a case to a jury is an every

day question common to every type of case. Such a decision

sets no precedent and can never conflict with other decisions

on principle for it depends purely on a question of fact—

the sufficiency of the evidence. It could not constitute such

“special and important reasons” for granting a writ of

certiorari as is contemplated by Supreme Court Rule 38

par. 5.

Petitioner cites on page 3 of her petition the case of

Ruhlin vs. New York Life Ins. Co., 304 U. S. 202, 82 L. Ed.

1290 to support her contention that uniformity between

the circuits will be enforced by grant of certiorari where

conflict appears. After certiorari had been granted in that

case and oral argument had been heard on March 10, 1938,

but before the decision had been rendered on May 2, 1938,

the case of Erie R. R. vs. Thompkins, 304 U. S. 64 was

decided by the Court on April 25, 1938. In the Ruhlin case

this Court commented, “Had Erie R. Co. vs. Thompkins

been announced at some prior date the course of this case

might have been different. This Court might not have

issued a writ of certiorari’. This Court went on to say

(headnote 2):

“As to questions controlled by state law, conflict

among Federal Circuit Courts of Appeals is not of itself

a reason for granting a writ of certiorari by the Su-

preme Court of the United States, as the conflict may

be merely corollary to a permissible difference of opin-

ion in the state courts.”

This court in the Ruhlin case further held “we decline

to decide the issue of state law’’. This Court then remanded

the case because the circuit court (having decided the

case before Erie R. Co. vs. Thompkins) had refused to

consider the state court decisions and had decided the case

independently under general principles of law.

As both the Hutcheson case and the Behnke case followed

the decisions of their respective state courts, they could not,

under the ruling of this Court in the Ruhlin case, constitute

such conflict as would be a reason for granting the writ of

certiorari.

(2.)

No Conflict With Georgia Decisions

Petitioner contends that the decisions of the District

Court and the Circuit Court are in conflict with Georgia

decisions as to Counts I, II and IV. But petitioner cites

no immediately controlling Georgia decision to the contrary

though numerous Georgia decisions, almost identical on

their facts, were cited to the District and Circuit Courts,

which held that in such circumstances there is no valid,

written contract of insurance on which there can be a

recovery. Some of these controlling Georgia decisions are

cited in the opinion of the District Court (R.P.118-123)

which was adopted by the Circuit Court. Others will be

cited by us later in this brief. No reason is shown on this

point for granting a writ of certiorari.

Petitioner's Real Reasons for Asking Issuance of Writ

Before discussing the Georgia decisions and statutes we

suggest that it is manifest from the brief filed by petitioner

in support of her application for certiorari that she is in-

voking issuance of the writ merely to obtain another hear-

ing on points twice decided adversely to her contentions;

that she is seeking a réview of a-judgment based solely on - -

a question of fact, towit: the ruling of the trial court, upheld

in result by the Court of Appeals, refusing to submit certain

questions to the jury. If this Honorable Court took juris-

diction, all that it could possibly decide would be the law

of the State of Georgia applicable to the facts of this par-

ticular case; and as the Georgia state courts, as well as those

of other jurisdictions, would be free to decide differently in

cases yet to arise, and might well do so, the decision of the

U. S. Supreme Court would not serve to settle, with any

finality, any question of law which any state court, or any

federal court bound to apply state law, would be compelled

to follow.

Fis

hee

Georgia Decisions and Statutes

COUNTS I, Il AND IV

The decisions of the District and Circuit Courts are con-

trolled by Georgia statutes and decisions on these counts.

Believing it unnecessary to quote the language of the Geor-

gia Courts we will state the principle announced and cite

the cases so ruling, inviting this Court to check our accu-

racy in so doing by an inspection of the decisions and stat-

utes cited.

The application for the policy provided:

“I further agree that this insurance shall not be in

force until the application is accepted and the policy

issued by the Company; nor until the policy is deliv-

ered to and accepted by the applicant in sound health

and free from injury.”

No policy was ever delivered to or accepted by Burks. He

died December 3 and the policy was not written up until

December 5. Before the transmittal letter was written de-

fendant had been notified of his death.

7 (a) Contracts of insurance in Georgia must be wholly

in writing and may not be partly in parol.

See: Code of Georgia, Section 58-213

Code of Georgia, Section 56-801

Code of Georgia, Section 56-911

Newark Fire Ins. Co. vs. Smith—176 Ga. Rep.

91, 94-6 167 S. E. 79

Knight vs. Superior Fire Ins. Co.

80 Fed. 2d 311 (5 C.C.A.)

The following cases expressly held that alleged oral agree-

ments of the agent at the time of taking the application

could not create a contract of insurance or modify or change

the terms of the writing.

See: Fowler vs. Liberty National Ins. Co.

73 Ga. App. 765, 770 (4)

38 S. E. 2d 60

Maddox vs. Life & Cas. Co.

79 Ga. App. 164, 176 (5)

53 S. E. 2d 235

Petitioner devotes a considerable proportion of her brief

to her contention that the authority of defendant’s agent

was not limited and that the alleged oral agreements or

representations would constitute a waiver or estoppel which

would prevent defendant from denying a recovery to plain-

tiff. ‘The cases cited invoke such doctrine to deny to an in-

surance company the right to defeat recovery on a policy al-

ready issued and delivered on the ground of breach of

warranty or of representation by the insured, when such a

breach has been waived, or the company estopped to assert

it, by the knowledge or acts of the agent. There is no such

question in this case. It would be necessary, if plaintiff's con-

tention is to avail anything, that a contract be created by

waiver or estoppel. The courts frequently hold a company

estopped to assert a breach of contract but we have found

no cases wherein the courts hold a contract to be created by

waiver or estoppel. In the opinion of the lower court in the

instant case (R. 120-121) this difference was well expressed

as follows:

‘There is no question of waiver of terms agreed upon

by the parties. The question is rather what was the

agreement between the parties, if any. The terms of

Burks’ offer cannot be altered by oral representations.

Maddox v. Life and Casualty Ins. Co. of ‘Tenn., supra.

Furthermore, the condition contained in the applica-

tion not only gave certain rights to the Company but

it reserved certain definite rights to the applicant,

namely the right to accept or refuse any policy issued

by the Company. Since it was a right belonging to

both parties, it was not something which one party

could waive and thus create an unconditional obliga-

tion out of a conditional one.”

‘he Court of Appeals of Georgia, in the case of Life &

Caalty Co. of Tenn. vs. Carter, 55 App. 622, 626, 191 S. E.

15, said:

“Estoppel is negative (thou shalt not) ; it is not cre-

ative (thou shalt). In the Hale case the insured, it

seems, was asserting the negative, thou shalt not de-

stroy my policy; and this contention was upheld. In the

instant case the insured is in effect asserting thou shalt

create a different kind of policy by changing one of the

conditions in the policy as written. The policy as

written can not be affirmatively transformed by estop-

pel.”

'b) Delivery, while not essential as a matter of law under

Grrgia Code Sec. 56-801, is essential if required by con-

trt, contained either in the application or the policy. In

ces whose facts parallel those of the instant case the Geor-

g' Courts have upheld the requirement of delivery.

See: Mitchiner vs. Union Central Life Ins. Co.

185 Ga. Rep. 194, 196

1945S. E. 530

Newton vs. Gulf Life Ins. Co.

55 Ga. App. 330, 332

190 S. E. 69

Reserve Loan Life Ins. Co. vs. Phillips

156 Ga. 372, 376

119S. E. 315

Metropolitan Life Ins. Co. vs. Tharpe

20 Ga. App. 706

93 S.E. 299

Delivery, where required by the contract, is held to be

a condition precedent.

See: Volunteer State Life Ins. Co. vs. McGinnis

29 Ga. App. 370, 371

1158S. E. 287

In the lower court plaintiff relied strongly on the case

of New York Life Ins. Co. vs. Babcock, 104 Ga. 67 to sup-

port her contention that delivery was not essential and this

case is cited to this court on pages 18 and 25 of plaintiff's

brief. As will be seen by an examination of that case, at

page 68 and the top of page 69, the application for the

policy therein did not require delivery but simply required

approval of the application. Code Section 56-801 was cited

to the effect that delivery is not required by statute and

therefore it was held that in that case delivery was not re-

quired. However, on page 71 the court even in that case

clearly recognized that delivery is essential where made

essential by the contract saying “‘we do not mean to say,

however, that the insurer and the insured cannot by their

contract make an actual delivery of the policy essential to

its validity’.

It must be kept in mind that the suit in the instant case

deals with an application which does require delivery and

not with an application which is satisfied merely by accept-

ance of the application at the home office as is true of almost

all of the cases cited by the plaintiff. Neither does the in-

stant suit involve a type of policy which provides for a pre-

liminary or temporary insurance which shall date as of the

date of the application under certain circumstances, as do

many of the cases. None of the cases in those categories

could have any application whatever to the decision in the

instant case, but only such cases as deal with an application

for insurance which in terms required delivery to the appli-

cant before there could be an insurance contract. In fact

we have not found any contrary Georgia decision to the

ones which we have cited where the facts show that the

application did contain a requirement of delivery in order

to make an effective contract. This question of delivery is

paramount in this case and we believe will decide practically

all, if not all, of the collateral issues which have been raised;

and as we see it, it is well settled and undisputed under the

Georgia law. There is no pretense in the pleadings or the

facts put in evidence that there was any delivery of the

policy in the instant case, it being uncontradicted that Mr.

Burks died on December 3 and the policy was not even

written up until December 5 and dated that day before it

was even transmitted the defendant was notified of the

death of Mr. Burks and did not even write the transmittal

letter.

Plaintiff amended her petition by adding a fourth count

seeking reformation so as to reform and change the date

of the policy which was issued after. the applicant's death,

on December 5, and have it dated prior to his death, either

November 25, the date when the check was deposited, or

December | or December 2, the date when the application

is supposed to have been marked “‘O.K.”. The case of Reese

ys. Fidelity Mutual Life Insurance Company, 111 Ga. 482;

36 S. E. 637, was a case seeking reformation and the court

refused to allow the prayers of the petition but upheld a

finding on the law for the defendant. The case of Boswell

vs. Gulf Life Ins. Co., 197 Ga. 269; 29 S. E. 2nd 71, also was

a case in which the plaintiff prayed for reformation so as

to change the date of the policy. In the Boswell case the

application, as in the instant case, provided that there

should be no insurance contract until a policy should

be issued and delivered, but the policy was dated at a date

subsequent to the death of the applicant. In that case Judge

Bell, the other Judges concurring, said:

“The time when an insurance policy shall become

effective is an essential element of the contract, and

the parties may fix a future date upon which it shall

become effective” * * * “A policy bearing a given date

and purporting to insure for the future only, cannot

be made the basis of an action to recover for a loss

occurring on a prior date.” * * *

“In this case the application amounted only to an

offer, and the company was free either to accept or to

reject it entirely. Accordingly in acting upon the appli-

cation it could fix a future date on which the policy

would become effective. If the policy as thus issued,

either because of its date or other reason, did not con-

form to the application, it would constitute only a

counter offer and could not be reformed merely be-

cause of such variation.”

The court further went on to state that it was unneces.

sary to determine whether there had been an actual or con-

structive delivery in that case for the policy being dated

after the date of the applicant's death, as the company had

a right to do, could not be reformed so as to have it dated

before his death, and therefore there was no insurance con-

tract, the application having required delivery.

(d) Application not Attached to Policy.

Petitioner has argued at length in her brief that the evi-

dence shows that the application in this case was not at-

tached to the policy which was issued on December 5 and

that under the. Georgia Code Section and other cases it is

clearly held that when an application is not attached to the

policy then it cannot be a part of the insurance contract.

Obviously this is good law, but it pre-supposes that a policy

is not only issued, but if required is delivered, so as to be-

come itself a binding contract of insurance, before this law

can have any application to the case. We have already shown

that because the requirement of delivery was not met there

was never any policy of insurance which became a binding

contract of insurance, it not having been issued until two

days after the applicant’s death, and never having been

delivered. Therefore the law which requires an application

to be attached to a policy before it can be considered a

part of the policy itself and therefore a part of the contract,

can have no application whatever to the present case.

The case of Maddox vs. Life & Casualty Ins. Co. of Tenn.,

79 Ga. App. 164 supra was a suit on one of the type of poli-

cies which did not require delivery but which provided

for preliminary insurance from the date of the applica-

tion under certain circumstances, provided only the appli-

‘ation had been accepted. Such acceptance not being shown

in that case, the court expressly stated that the plaintiff's

rights depended upon the terms of the application, as shown

by the decision on page 169 in that case. The same thing

is true in practically each of the cases which we cited deal-

ing with the question of delivery, for when there has been

no delivery and therefore no policy of insurance which is

a valid and binding contract, the only rights which the

plaintiff has and can assert are such rights as the application

would give him. So in the instant case the plaintiff is de-

pendent upon asserting rights under the application as an

offer to contract or else she is out of court, unless the court

should decide that the requirement of delivery was complied

with and there was a binding policy of insurance which

became effective because of delivery. If the plaintiff would

abandon the terms and provisions of the application, then

she has abandoned everything she has in the case. Where

‘there has been no delivery and therefore no binding policy

of insurance, the suit must be on the application or there is

no standing whatever in court. The rulings in the follow-

ing cases, in addition to the Maddox case are to this effect:

Fowler vs. Preferred Accident Ins. Co., 100 Ga.

$30 (1-3), 331-334; 28 S. E. 398

Johnson vs. American Nat. Ins. Co., 134 Ga. 801,

) 802-3; 68 S. E. 731

Boswell vs. Gulf Life Ins. Co., 197 Ga. 269 (1) , 272;

29 S. E. and 2nd 71.

We believe that the foregoing authorities and comments

we have made will dispose of the contentions and argument

of plaintiff's attorney which are rather intriguing, but it

seems to us are not sound. He contends first that the policy

should be dated back to a date before the death of the appli-

cant. Then he would build on this hypothesis and say that

having dated the policy back to a date that would make it

an effective contract, then the application not being at-

tached, the provisions in the application requiring delivery

would have no effect. But in seeking to establish his first

hypothesis, that the policies should be in equity considered

to be dated back, he ignores the requirements of the appli-

cation which required delivery before there could be a

binding policy of insurance. He seeks to ignore these and

then, having established a policy, to wipe out the require-

ments of delivery as contained in the application. Obviously

they cannot be ignored in order to have the policy dated

back, and there is the fallacy of his argument because the

contract cannot be dated back because of these very re-

quirements in the application. Not being dated back then

the effect of the terms of the application cannot be destroyed

because it was not attached to the policy itself.

(e) Prepayment of First Premium

In plaintiff's brief page 30, a similar contention is raised

with reference to Paragraph 3 on the back of the policy

which provides that the policy cannot be cancelled for the

term for which the premium has been paid. What is this

term for which the premium has been paid is clearly set

forth on the front page or face of the policy itself which

provides “this policy is issued in consideration of the appli-

cation and the payment in advance of the monthly premium

of $10.00 to commence on the 5th day of December, 1949".

But for the reasons stated in subdivision (d) above, this

argument is also fallacious because the provisions of the

policy which was issued two days after applicant's death

‘and which was never delivered, cannot be invoked by

either party to this case because the policy never became

a binding contract of insurance or any part of such a con-

tract. The fact that an advance payment was made and was

deposited or cashed by the defendant would in no way

affect the rights of the parties under the decisions we have

cited, all dealing with the identical question involved in

the instant case, towit: a provision in an application which

required delivery before there should be effective insur-

ance. The fact that the first premium was prepaid in those

cases was held not to affect the rights of the parties nor to

make a contract where there otherwise was none because

of failure to deliver the policy. See:

Maddox vs. Life & Casualty Ins. Co.,

79 App. 164, 175 (4).

Boswell vs. Gulf Life Ins. Co.,

197 Ga. 269

29 S. E. 2nd 71

Reserve Loan Life Ins. Co., vs. Phillips,

156 Ga. 372

119S. E. 315.

COUNT Ill

As to this Count the Circuit Court decided that there

was not sufficient evidence to carry the case to a jury. It

refused to decide, as between the two conflicting lines

of the authorities in jurisdictions outside of Georgia,

whether any legal right existed to sue in tort if there had

been sufficient evidence to go to a jury on the theory of

negligence because of delay by defendant. As pointed out

by this Court in the Ruhlin case, supra, this Court will not

undertake to decide what the law of Georgia might be

when called «pon to decide this question.

The District Court did decide the question, choosing

to follow the line of cases it thought, and we submit, are

better reasoned. The contrary line of cases seems to be in

the minority. These cases generally were written with

“scissors and paste” and refer to some other case as a prece-

dent and give no reasons of their own for the conclusions

reached. Where they do give reasons these are typical: (1)

lightning or storm insurance on crops in its nature demands

haste and in many states ( but not in Georgia) may be con-

tracted by oral binder, (2) the business of insurance is

affected with a public interest and public policy requires

a prompt answer, (8) often the decision is really placed on

implied contract in. jurisdiction where oral contracts of

insurance are recognized.

On the contrary the line of cases followed by the District

Court gives full and logical reasons for the conclusions

that no suit in tort will lie. These reasons are that an appli-

cation for insurance is a mere offer to contract which may

be accepted, rejected or unanswered, and in the manner

prescribed in the offer (the appiication) . Until and unless

accepted no duty devolves upon the other party and there

can be no tort without a legal duty and a breach thereof.

See: Savage vs. Prudential Life Ins. Co. of Amer.

(Miss.)

121 Southern Reporter 487 (2 and 3) 488-489

Metropolitan Life Ins. Co. vs. Brady (Ind.)

174 N. E. 99, 100, 102-3

National Union Fire Ins. Co. vs. School Dist.

(Ark.)

182 S. W. 547 (1, 3,4) 458

In a thorough and well reasoned decision the District

Court of Missouri listed and discussed the leading cases in

the two contrary lines, exposed the spuriousness of the

yeasoning of the contrary line and the soundness of the

supporting line of cases.

"See: Munger vs. Equitable Life Assur. Soc. of the

US.

2 Fed. Supp. 914 (1-2), 915-921 (Dist. Ct. WwW.

Dist. Mo.)

The underlying principles of the supporting line of

cases are fully recognized in decisions of this Court and the

Courts of Georgia. In Giddings vs. Insurance Company,

102 U. S. 108, 111, 26 L. Ed. 92, this court said (it was not

a tort case and therefore it was dictum so far as the tort

theory is concerned) : “The presentment of the application

to the agents * * * and its receipt by the (Insurance) com-

pany, in no wise committed or bound the latter to anything.

It was competent for the company to pause as long as they

might deem proper, and finally to accept or reject the ap-

plication as they might choose to do. If they elected to con-

tract, they had the right to prescribe the terms, and it was

_ for the other party to assent to or reject them. His unbroken

silence, as would have been such silence by the company

after receiving the application, was necessarily negation.

Neither party in such case would have been bound in any

wise to the other, because there would have been wanting

the mutual assent of the minds of the parties, which is

vital in all cases to the creation of a contract obligation”.

Holding to the same effect see:

Home Ins. Co. vs. Swann

34 Ga. App. 19 (2), 24, 25

There is no pretense that defendant killed the applicant

or otherwise committed any affirmative tort. If defendam

had no duty or obligation under a contract it was under

no duty at all; and hence there was no tort.

See: Code of Georgia, Section 105-101

Code of Georgia, Section 105-103

Code of Georgia, Section 105-104

Georgia Kaolin Co. vs. Walker

54 Ga. App. 742, 746-47

Beneficiary cannot sue in Georgia

In each of the cases in the contrary line of decisions the

suit was brought in tort by the administrator of deceased

applicant except a few where the courts denied recovery

and held that the tort was to deceased and the beneficiary

could not sue but suit could only be maintained by an

administrator of deceased.

See: Vuke Stray vs. Western Life Ins. Co.

$00 Pacific 1046; 75 A.L.R. 950-952

Deford vs. New York Life Ins. Co.

75 Colo. 146

224 P. 1049, 1050

Duffie vs. Bankers Life Asso.

160 Iowa 19

139 N. W. 1087

46 L.R. A. (N.S.) 25

Bradley vs. Federal Life Ins. Co.

129 N. E. 171

15A.L.R. 1021, 1024

We believe it will be perfectly clear to the court that

if any right of action had survived, it would survive to an

administrator and not to an heir at law. But under Code

Section 3-505, and the construction of that statute by the

Supreme Court of Georgia, it is held that the survival men-

tioned in that Code Section deals only with the survival of

a right of action held by an individual before suit is filed.

It is true that in 1935 this Section was amended so that a

right of action against a wrong-doer shall survive against

the administrator of the wrong-doer, but it did not change

the Section as to the person who was himself injured. As

to him, his claim for tort dies with him and there has never

been any amendment to change the law as set forth by our

Supreme Court that his cause of action ceases with his death.

This is precisely held in the case of Frazier vs. Georgia Rail-

road Company, 101 Ga. 77 (1) . Plaintiff's brief has cited

no authorities to the contrary and we are satisfied there

are none.

CONCLUSION

The application amounted only to an offer to contract

under the terms and conditions it prescribed. This offer

could not be varied or enlarged by any alleged parol

agreement with the agent. Under the rulings of the Georgia

courts, this offer cast no duty whatsoever upon the defend-

ant, which might accept or reject it at its pleasure, without

any time limit. A failure to accept it would amount to a re-

jection in law. It could not be accepted simply by putting

the letter ““O.K.” on the application for the offer itself pre-

scribed what would be acceptance and make a binding

contract and that is that a policy should be issued (before

his death necessarily) and further that such policy should

be delivered to the applicant who must accept it while he

is still in good health. Obviously no contract was ever com-

pleted in the instant case. There being no such completed

contract plaintiff's case must fail as to Counts I, II and IV,

It must also fail as to Count III because the defendant 7

under no duty or obligation to accept the offer of the de.

ceased, could not be guilty of negligence because it had

not accepted such offer before his death.

The decision of the Circuit Court was not in conflict

with decisions of the Georgia courts, and as pointed out at

the beginning of this brief it is not in conflict with the de-

cisionss of other circuits. Besides, the questions de-

cided by the Circuit Court are not important or unusual

questions. As to Counts I, II and IV they involved well

settled principles of insurance contract law. As to Count

III the question decided was simply that there was insuffi-

cient evidence to submit the case to a jury. The decision

of the Circuit Court of Appeals, whether from the stand-

point of result or precedent, is isolated, and involves no

principle the settlement of which is of importance to the

public as distinguished from that of the parties and hence

furnishes no basis for the granting of the writ of certiorari

under Section 5(b) of Rule 38, Lane & Bowler Corp. vs.

Western Well Works, 261 U. S. 387, 393, 67 L. Ed. 712

714. It is not probable that the facts will again be duplicated,

and basically petitioner is asking this Court to review and

weigh the facts. Time and again this Court has held that

the granting of the writ is not warranted merely to review

the evidence or inferences drawn from it. To cite a few

instances: General Talking Pictures Corporation vs. West-

ern Electric Company, Inc., 304 U. S. 175, 178, 58 S. Ct.

849, 82 L. Ed. 1273; United States vs. Johnston, 268 U. S.

220,, 45 S. Ct. 496, 69 L. Ed. 925; Southern Power Co. vs.

North Carolina Public Service Co. et al, 263 U. S. 508, 44

§.Ct. 164, 68 L. Ed. 413. We therefore submit that the pe-

tition for a writ of certiorari should be denied.

Respectfully submitted,

. S. Aucustus BLAck i

P. O. Columbia, S. C. \

R. LANIER ANDERSON, JR.

P. O. Macon, Georgia

Attorneys for Respondent

ANDERSON, ANDERSON, WALKER & REICHERT

Of Counsel

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