Opinion
32929.
DECIDED MAY 3, 1950.
Action on group policy; from Brunswick City Court — Judge Little. December 19, 1949.
Gibson DeLoache, Sam J. Gardner Jr., Joseph A. Whittle, for plaintiff in error.
Gowen, Conyers Dickey, contra.
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
DECIDED MAY 3, 1950.
Dorothy Cody, administratrix, plaintiff in the court below, defendant in error here, hereinafter called the plaintiff, brought suit in the City Court of Brunswick against the United National Insurance Company, defendant in the court below, plaintiff in error here, hereinafter called the defendant, to recover certain death benefits alleged to be due the plaintiff on the life of the husband of the plaintiff, James Cody. It was agreed by the parties that the case be tried before the judge of the court, without the intervention of a jury, and that the said judge would pass upon all issues of law and facts. The trial resulted in a verdict for the plaintiff, which is hereinafter set forth. The defendant's motion for a new trial was overruled, and the case is properly before this court for review.
The petition alleged, in substance, that on April 14, 1948, the defendant issued to James Cody a blanket group accident policy insuring the employees of the said James Cody against accident and death for a period of three months after date of the policy; that by endorsement dated the same day, attached to and made a part of said policy, James Cody was included under the coverage of said policy as owner-operator; that the endorsement was attached and made a part of the policy; that on July 14, 1948, the policy was renewed for an additional period of three months; that James Cody was accidentally killed on September 14, 1948, which accident arose out of and in the course of his employment; that the insurance policy was in force on the date of the death of the deceased; that the defendant insurance company was indebted to the petitioner in the sum of $2750 (the amount of the policy on the life of James Cody), plus 25 percent penalty, plus court costs and attorney's fees.
The plaintiff amended the original petition, and by amendment alleged that she was the temporary administratrix of the estate of the deceased as of September 25, 1948, and was made permanent administratrix on December 29, 1948. The plaintiff further alleged: "During the last part of November, 1948, the said agent of the said company called on petitioner and told her that he had informed the company concerning the death of the said James Cody and that the company had instructed him to tell her that they were denying any liability under the said policy on the ground that a premium of $15 in addition to that specified in the policy had not been paid and the company contended that James Cody was not covered and were refusing to pay any sum thereunder." It was further alleged that denial of liability was made within 90 days after the death of the deceased, which made it unnecessary to submit further proof of loss to the defendant.
The defendant answered, admitting practically all of the facts alleged in the original petition of the plaintiff except as to the effectiveness of the endorsement as of September 14, 1948, and as to notice, which it denied, thus denying liability on the policy.
Prior to the trial, counsel for all parties concerned entered into the following stipulation:
"1. Counsel for defendant admits that James `Jim' Cody was accidentally killed on September 14, 1948, while returning to Kingsland, Georgia, after driving a group of his employees to work in the woods of Camden County, Georgia.
"2. Counsel for defendant admits that a copy of said insurance policy together with the endorsement thereto was attached to the petition and made a part thereof.
"3. On July 14, 1948, the deceased forwarded his check to the company in the amount of $35.92 together with [certain] documents. The defendant accepted such check, cashed the same, and did not communicate with the deceased further with respect to the premium due on July 14, 1949. The sum of $35.92 represented 2% of the total payroll of James Cody from April 14, 1948, to July 14, 1948.
"4. The letters, copies of which were made a part of the record, were written to the addressee and received by them in due course by mail. Letter from Gowen, Conyers Dickey to the company dated January 4, 1949, letter from the company to Mr. Conyers dated January 7, 1949, and letter from Gowen, Conyers Dickey dated January 10, 1949, and letter from the company to Mr. Conyers dated January 19, 1949.
"5. Counsel for defendant admits that James `Jim' Cody was engaged in his pulp wood and logging business at the time of his accidental death.
"6. Counsel for defendant admits that the accidental death of the said James `Jim' Cody arose out of and in the course of his occupation.
"7. It is agreed that the plaintiff qualified as temporary administratrix on September 25, 1948, and as permanent administratrix on December 29, 1948.
"8. It is agreed that this case shall be submitted to Honorable W. C. Little, Judge of the City Court of Brunswick, without intervention of a jury and that he shall pass upon all issues of law and fact.
"9. The right is reserved by both parties hereto to submit additional testimony not in conflict with the foregoing stipulations."
Additional evidence, in the form of testimony by Mrs. Dorothy Cody, was as follows: That on or about October 5, 1948, Mr. Griffin and Mr. Norton, of the United National Insurance Company, called on her; that they came to see her about the death of her husband; that when they came they said they came to see her about his death, and that the company had sent them to pay up the claim on his death; that they said he was insured with the company, and that they wanted to see the report for the last premium payment; that she gave them all the facts about her husband's death, signed all the papers Mr. Norton asked her to sign; that she didn't have a duplicate of the report of July 14th; that she showed them the social security report; that the report was figured on the same basis as the social security report; that they told her that she hadn't enclosed the $15 that should have been included in the premium paid. She testified that she was told that the policy had lapsed; that Mr. Norton gave her his telephone address and told her to give him her address and said that plaintiff would hear from him in a few days; that she tried to call him when she didn't hear from him, but he had left and that she didn't hear any more until sometime in November and the company did not write. She further testified that Mr. Norton told her to take out new insurance, which she did; that she received this policy through the mail the latter part of November; that Mr. Norton came back in November and told her that the company would not pay the claim on her husband's policy. She testified that Mr. Norton, who took the application for her policy, signed the same on the application, representing the company, and under his name were the words "Authorized Agent"; that she knew Mr. Norton and Mr. Griffin; that they were the gentlemen who came to see her about her husband's death; that no one except Mr. Norton and Mr. Griffin ever contacted either her or her husband about business with the defendant insurance company.
This case is appealed to this court on the general grounds only, the question being (a) whether or not the evidence supports the verdict and judgment as to the finding that James Cody was insured under the policy sued upon at the time he was accidentally killed, and (b) that even if insured, whether the plaintiff is entitled to recover because "proof of loss" was not filed within 90 days from the date of James Cody's death.
The trial judge rendered a comprehensive opinion, which we will hereinbelow set out verbatim, in order to facilitate our findings. That opinion and judgment reads:
"This case was submitted to the court for determination without the intervention of a jury, upon an agreed statement of facts, supplemented by evidence on one point upon which the parties could not agree. Under this statement and the pleadings filed, it is admitted that on the 28th day of April, 1948, the defendant company issued to one, James Cody, a blanket group policy of insurance, insuring, for the term of three months thereafter, the employees of the said James Cody against `personal bodily injuries effected solely through accidental means arising out of and in the course of their employment, and such infection as naturally and unavoidably resulted from such injury.' It also, by a rider attached thereto, insured the said James Cody himself `for full time coverage' under said policy, reciting that the said James Cody was `entitled to all benefits thereunder.'
"The application for this insurance, signed by Cody and made a part of the policy, stipulates that the `initial rate for the first quarter' is to be 2.4% that the `rate per quarter thereafter is to be 2%; basis of pay roll $2600.00 per quarter.' Then follow these questions and answers: `Is any person not appearing on the pay roll records to be insured hereunder? (A) Yes. If so, such person will be entitled to the maximum benefit under the policy for the flat extra 1/4 premium of $15.00, and such persons, if any, are listed by the name and occupation below:
"`Name: James Cody. Occupation: Owner and operator.'
"By the evidence of Dorothy Cody, it was established that, prior to July 14, 1948, which was the original expiration date of said policy, a `reminder notice', partly in the form of a questionnaire, was received by the deceased from said company, in which he was instructed to complete said from and return it to the home office of the company immediately, together with his check or money order for the premium due on July 14, 1948. The questions propounded by this questionnaire were as follows:
"Number of employees listed ___________________________ Total wages paid $ ___________________________________ 2% of wages ___________________________________________ Extra premium (flat rate) _____________________________ Total premium paid ____________________________________ Date quarter ended ____________________________________ Names of Employees: Wages paid: __________________ _________________ __________________ _________________ __________________ _________________ "In this questionnaire, the figure `2', immediately preceding the `%' mark, appearing in question three, was already filled in in typewriting when it was received by deceased, but the blank in question four, following the words `extra premium (flat rate)' was not filled in. "Cody completed the questionnaire as follows: Number of employees listed ___________ 8 Total wages paid ______________ $1795.96 2% of wages _____________________ $35.92 Extra premium (flat rate) ______________ Total premium paid ___________ $35.92 Date quarter ended _____ June 30, 1948. "He also listed the names of his employees and the amounts which each had earned during the previous quarter, and forwarded the same to the defendant company, together with his check for $35.92, representing 2% of the total amount of wages paid. These papers were received at the home office of the company at 2:15 p.m. on July 13, 1948. No letter apparently accompanied same, and nothing was said by the deceased about an extra $15.00 premium, nor whether he did or did not intend to allow his personal insurance to lapse, or whether he did or did not understand that the 2% which he enclosed represented the renewal premium on the policy in full. Nothing more was paid.
"The company accepted the $35.92 and did not communicate further with deceased concerning the premium due on the policy, and the policy remained in the form in which it was originally issued until the death of the deceased, which resulted from an accident arising out of and in the course of his business, on September 14, 1948. Notice of his death was given to the defendant company, request made for proper forms upon which to make formal proof of loss, and a denial made by the company of all liability therefor. Suit was then brought in an effort to collect the amount alleged to be due.
"An examination of the policy and the application made therefor, discloses further these facts:
"(1) There is no provision in either the application, the endorsement or the policy, which specifically says, in so many words, that another `special premium of $15.00' shall be necessary to renew the insurance of James Cody individually.
"(2) The only language in the policy itself, dealing with the renewal of any of said insurance is the following:
"(a) `This policy is renewable only at the option of the company', which appears in three places therein or thereon.
"(b) `This insurance may be renewed at the option of the company, by the payment of the renewal premium on or in advance of expiration dates, from quarter to quarter, of 2% of the total pay roll of the employer', and
"(c) `All endorsements and riders attached hereto, duly executed by proper authority, are a part of this policy the same as if recited at length over the seal of, and signature for, the company'.
"Construing these provisions as best we can, and giving consideration to the facts agreed upon and proved, the court is of the opinion that James Cody was covered under this policy at the time of his death.
"This construction, we think, is sustained not only by the provisions of the policy set forth above, but by the acts and omissions of the defendant itself. If, as the defendant contends, this coverage could be renewed only by the payment of another $15.00 premium, is it not reasonable to suppose that the application, the policy or the endorsement, one or the other, would somewhere have contained a provision to that effect? Can we merely assume, in the absence of any such provision, that a like amount would necessarily be required to renew that coverage for another term? Such was not required in the case of the employees' coverage, for their premium was reduced at least from 2.4% to 2%. Upon what theory then could such an assumption be predicated, if, in fact, any assumption at all could be indulged in which would tend to work a forfeiture of the insurance?
"If an additional premium of $15.00 were due on July 14, 1948, is it not reasonable to assume that the company, in preparing the `reminder notice' which it sent to the deceased, would have put that figure in the blank appearing in question four thereof as it did the figure `2' in question three? Would the defendant company, if deceased's premium remittance was actually $15.00 short, have accepted the same without a word of protest on its part? Would it not, in some way, have communicated to him its dissatisfaction with said remittance, if any existed? Would it not, at least, have given him notice that, because of his failure to include the additional $15.00 premium, his personal insurance had been, or would be, lapsed? None of these, it did. No further demands were made upon deceased; no new policy was written to supplant the old; no rider was issued to be attached thereto, and no endorsement made upon the original policy, showing that, in the future, its coverage would be limited to employees only. Indeed, so far as the record discloses, no request was ever made for the return of the policy that such an endorsement might be made thereon. Instead, upon receipt of the 2%, the company permitted the policy, without objection on its part, to remain in the exact form in which it was originally written until after the death of deceased. Would not these actions on the part of the company, and these omissions, at least estop it now from claiming that the policy was not in force with respect to the personal insurance of the deceased?
"That the deceased wanted this additional insurance is clearly evidenced by the fact that he made application for it. It had been in force less than three months, and nothing in the meantime had been said by him which would authorize the company to believe that he did not wish to continue with it. It had not been renewed before; consequently deceased did not know, from previous experience, just what the requirements of the company were with respect to renewal premiums. In this, he had only the policy itself to guide him. And the policy itself does not, in any place, say that the payment of an additional $15.00 premium shall be necessary to renew this coverage. The only policy reference to the renewal cost of any of said insurance is the reference referred to in # 2-b above, which reads as follows: `This insurance may be renewed at the option of the company by the payment of the renewal premium on or in advance of expiration dates, from quarter to quarter, of 2% of the total pay roll of the employer'. Apparently, deceased did what he understood to be required. He sent in the 2%. If this was not sufficient, did not the company owe him the duty of at least calling his attention to such deficiency? We think it did, and the fact that it did not do so, and did not do any of those other things which an insurance company might reasonably be expected to do if a deficiency in the premium remittance actually existed, sustains, we think, the position that the additional premium was not a requisite to a renewal of his coverage under the contract as it is written.
"The court further finds that neither a failure to give `immediate notice' of the death of the deceased, nor a failure to furnish affirmative proofs of loss within ninety days thereafter, would preclude a recovery under the policy since the policy itself provides for no penalty for either of such failures.
"In view of the fact, however, that defendant denies receiving any notice of the death of the deceased prior to counsel's letter of January 4, 1949, and the further fact that there is no dispute about the affirmative proofs of loss not having been made within ninety days as the policy provides, the court is of the opinion that the failure of the company to pay this claim does not evince such bad faith upon its part as to authorize the plaintiff to recover either the stipulated penalty or counsel fees.
"It is therefore ordered, adjudged and decreed that the plaintiff do have and recover of and from the defendant, United National Insurance Company, the sum of twenty seven hundred fifty dollars ($2750.00), together with interest thereon at 7% per annum, from September 14, 1948, and the further sum of $31.45 costs of court.
"Granted in open court, this the 26th day of October, 1949. (Signed) W. C. Little, Judge, City Court of Brunswick."
(a) As to whether or not the policy on the life of the deceased was of force at the time of his death, able counsel for the defendant contend that the $15 paid covering the life of the deceased, as reflected by the endorsement on the policy, which became a part of the policy, was not covered by the second quarterly payment of the insurance policy, but that another $15 should have accompanied that premium, in order to renew the endorsement, and that the endorsement automatically expired at the end of the three months after its issuance unless the same was renewed at the option of the company and the insured. The policy provided as to renewal premiums: "This insurance may be renewed at the option of the company, by the payment of the renewal premiums on or in advance of expiration dates, from quarter to quarter of 2 per cent. of the total payroll of the employer." (Italics ours.) The endorsement reads:
"Attached to and forming a part of policy G-2731 issued to James Cody. [Policy No. G-2731, the policy. This endorsement becoming a part thereof]
"In consideration of an additional premium of $15.00 included in the premium stipulated in the face of this policy, and paid concurrently with and under the same terms and conditions as the premium of the said policy, it is specifically understood that the employer himself, James Cody, is insured under this policy for full-time coverage and is therefore entitled to all the benefits thereunder. [Italics ours.]"
It seems that, under the terms of the policy, the policy expired exactly three months from the date of issuance thereof; that the endorsement, by the language quoted above, was a part of the policy; that the record shows the reminder notice of renewal was sent to the insured; that the premium as requested on June 30, 1948, was paid; that no protest of the amount of the premium received was made by the defendant. It would seem therefore, that the premium was paid in due time, and since the check in payment thereof was cashed and no protest made by the defendant until after the death of the deceased, the deceased was lulled into a sense of security in regard to his insurance, and the defendant by laches, if not otherwise, lost the chance to collect an additional premium. Counsel for the defendant argue that payment of a premium is a condition precedent to renewing coverage, and cite in support of this theory the cases of Bankers Health Life Ins. Co. v. Crozier, 65 Ga. App. 329, 331 ( 16 S.E.2d 65), and Illinois Life Ins. Co. v. McKay, 6 Ga. App. 285 ( 64 S.E. 1131). This is a good principle of law, but not applicable under the facts of the instant case. In the first case cited, the policy of insurance had been cashed in, it is true without the knowledge of the beneficiary, but until the death of the deceased the contract was between him and the insurance company, not between the insurance company and the beneficiary, and although she continued to send money to the insured to pay the premiums, there was sufficient evidence to show that they were not paid, particularly in view of the fact that the beneficiary himself cashed in the policy. And the second case cited shows under its facts that the premium payment was mailed on a certain day, was due in a city 1000 miles away the next day, did not reach the addressee until one day after the payment date, and therefore the policy lapsed. These are not the facts in the case before us. Another case cited by counsel for the defendant to the same effect is Smith v. New York Life Ins. Co., 65 Ga. App. 451, ( 15 S.E.2d 813), but in that case although earned dividends were to be applied as premiums, it appears that the earned dividends did not cover the whole premium and there was no offer to pay the difference, the court held that the company was not estopped to plead the forfeiture. The case of Metropolitan Life Ins. Co. v. Smith, 48 Ga. App. 245 ( 172 S.E. 654), also turned on the matter of applying dividends to the payment of premiums, and is not on all fours with the facts in the case at bar.
We have given hereinabove the endorsement, which became a part of the policy, and also have quoted that part of the policy which concerns premium rates. It is possible that the wording of the policy is ambiguous, but if so, that phase of law has been definitely decided by the appellate courts in many instances.
In the case of Penn Mutual Life Ins. Co. v. Childs, 65 Ga. App. 468 (3) ( 16 S.E.2d 103), this court said: "If the clause is ambiguous, or of doubtful or dual interpretation, that construction must be given which will be most favorable to the insured and provide the benefits intended under the contract."
See also to the same effect, Insurance Company of North America v. Samuels, 31 Ga. App. 258 ( 120 S.E. 444), which reads: "If a policy of insurance is capable of being construed in different ways, that interpretation must be placed upon it which is most favorable to the insured. Massachusetts Benefit Life Asso. v. Robinson, 104 Ga. 256 (2) ( 30 S.E. 918, 42 L.R.A. 261). An exception in a policy of insurance is to be taken most strongly against the insurer. Empire Life Insurance Co. v. Einstein, 12 Ga. App. 380 (4) ( 77 S.E. 209)."
"Policies of insurance are to be liberally construed in favor of the object to be accomplished. The terms used and any ambiguities in an insurance contract will be construed against the insurer who prepared and proposed the contract. If provisions in a policy conflict, that construction will be given which is most favorable to the insured. Hall v. Royal Fraternal Union, 130 Ga. 820, 835 ( 61 S.E. 977); Ogletree v. Hutchinson, 126 Ga. 454 ( 55 S.E. 179); Massachusetts Benefit Life Association v. Robinson, 104 Ga. 256 ( 30 S.E. 918, 42 L.R.A. 261); Arnold v. Empire Mutual Annuity Life Ins. Co., 3 Ga. App. 685, 695 ( 60 S.E. 470); Perkins v. Empire Life Ins. Co., 17 Ga. App. 658 ( 87 S.E. 1094)." Eminent Household of Columbian Woodmen v. Vance, 53 Ga. App. 237 ( 185 S.E. 391).
"`If one provision of a policy is absolutely repugnant to another other provision, the one most advantageous to the insured will be enforced, while the other provision will be ignored.' Under this ruling and the pleadings in the instant case, the answer of the defendant failed to set forth a legal defense, and the court properly sustained a demurrer thereto." Inter-Ocean Casualty Co. v. Alford, 50 Ga. App. 260 ( 177 S.E. 816).
"In determining whether, under the terms of the contract of insurance, the policy had lapsed at the time of the accident in question, there being conflict in its provisions as to when the insurance became of force, the provisions most favorable to the insured must control; and, it being provided in the application of the insured, which by the terms of the policy was made a part of the contract, that the insurance should not take effect until the delivery of the policy to the insured, and it appearing from the evidence, without contradiction, that the policy was not delivered until April 4, 1921, it must be held that the insurance ran from that date, although the policy stated that it ran from March 28, 1921, the date of the policy." Parham v. National Relief Assur. Co., 33 Ga. App. 59 ( 125 S.E. 519).
"Where an insurance policy is fairly susceptible of two or more different but sensible and reasonable constructions, the one will be adopted which, if consistent with the objects of the insurance, is most favorable to the insured. `In other words, a contract of insurance couched in language chosen by the insurer is, if open to the construction contended for by the insured, to be construed most strongly, or strictly, against the insurer and liberally in favor of the contention of the insured.' " Fokes v. Interstate Life Accident Ins. Co., 59 Ga. App. 680 ( 2 S.E.2d 170).
"If the policy is reasonably susceptible of more than one construction, the interpretation favorable to the insured should be given effect, and, if inconsistent clauses appear in the body of the policy, the one most favorable to the insured will be adopted, and where the contract is ambiguous the doubt should be resolved against the insurer. See Aetna Life Insurance Co. v. Padgett, 49 Ga. App. 666 ( 176 S.E. 702), and citations." Hart v. Metropolitan Cas. Ins. Co., 76 Ga. App. 474, 476 ( 46 S.E.2d 361).
"An indorsement upon an insurance policy, susceptible of two constructions, will be construed most strongly against the insurer." Insurance Company of North America v. DeLoach, 3 Ga. App. 807 (2) ( 61 S.E. 406).
"If the insurance policy is so framed that its language is calculated to mislead, the courts lean to a construction that will not permit the insurance company to take advantage thereof." Commonwealth Casualty Co. v. Asheimer, 18 Fed. (2nd) 879 (4), and cases therein cited.
We therefore hold that under the facts of this case the company accepted the premium, renewed the policy without protest, and can not after the death of the deceased be heard to claim that all the premium was not paid on the policy.
(b) We now come to the proposition as to whether or not "proof of loss" was filed within 90 days, or was waived by the company. As to this phase of the case, the policy provides: "Affirmative proof of loss must be furnished to the company within 90 days after the commencement of the period for which the company is liable, and in case of claim for any other loss, within 90 days from date of such loss." The deceased died September 14, 1948. On October 5, 1948, less than 30 days from the time of the death of the deceased, H. O. Norton whom the record shows signed certain documents as "Authorized Agent" for the defendant, called on the plaintiff, and, as alleged in the amended petition as quoted hereinabove, told the plaintiff that he would assist her in collecting the sums due her under the policy. The record shows that this agent presented certain papers to the plaintiff to sign, but did not suggest that she sign any papers concerning proof of loss. Nor did the defendant send any such papers to the plaintiff after having been notified by the agent that the insured had died. Certainly the defendant company was put on notice that the deceased had died, as evidenced by the company's agent securing a policy on the life of the plaintiff, and also by the fact that the said agent notified the plaintiff that the defendant had refused payment on the policy insuring the deceased. The defendant submitted no evidence that the agent did not so report to the plaintiff.
In Brown v. N. Y. L. Ins. Co., 54 Ga. App. 471, relied on by counsel for the defendant, no resemblance to proof of loss was given, because of the insanity of the insured (no other person having known of the existence of the policy), and there was no type of waiver made by the company. These are not the facts in the case before us. The facts in Dean v. Northwestern Mutual Life Ins. Co., 175 Ga. 321 ( 165 S.E. 235), also concerned non-payment of premiums for an insane person, and non-waiver on the part of the insurance company.
In Pooser v. Norwich Union Fire Ins. Soc., 51 Ga. App. 962 (4) ( 182 S.E. 44), this court stated that in a policy contract which provided no penalty on failure to furnish proof of loss within a specified time, does not necessarily render proceeds of the policy unrecoverable because of delay beyond the specified time. This same principle was involved in the case of Peoples Loan Savings Co. v. Fidelity Casualty Co., 39 Ga. App. 337 ( 147 S.E. 171), and was decided adversely to the contentions of the defendant.
There are numerous decisions to the effect that absolute refusal by an insurance carrier to pay the insured constitutes a waiver of the right of the insurer to insist upon compliance with proof of loss provisions of a policy. See, in this connection, Patrick v. Travelers Ins. Co., 51 Ga. App. 253, 255 ( 180 S.E. 141); Harp v. Fireman's Fund Ins. Co., 130 Ga. 726, 730 ( 61 S.E. 704); Travelers Ins. Co. v. Sanders, 47 Ga. App. 327 ( 170 S.E. 387); Travelers Ins. Co. v. Pittman, 51 Ga. App. 401 ( 180 S.E. 650); Prudential Ins. Co. v. Calloway, 54 Ga. App. 864 ( 189 S.E. 545); National Life Ins. Co. v. Jackson, 18 Ga. App. 494 ( 89 S.E. 633).
It therefore appears from the record in this case, as submitted to this court, that the authorized agent of the company secured information from the proper representative of the deceased; that such agent did not submit proof of loss blanks, did not suggest that such were necessary; that he reported the facts of the death to the company (this being undisputed); that the defendant did not, even at this time, which was within the time that proof of loss could have been submitted, ask for such proof, but through the same authorized agent, sent word back to the representative of the deceased that the defendant would not pay the loss; that the policy does not contain any provision that proof of loss should be in writing; that no evidence was offered to show any lack of authority in the authorized agent Norton; and further, that the policy does not contain any provision that would make failure to furnish proof of loss a ground upon which to void the policy or to refuse payment thereon.
In view of the whole record, we are constrained to hold that the best interests of justice are served by adhering to the judgment of the lower court in every respect, as reflected by the decision of the judge, acting as judge and jury, and affirming that opinion and judgment.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.