Cotton States Life Insurance Company v. Lester.

She did as she had done before she was sick at all, and after she was confined to her bed as before she was so confined.

Upon principle, we think that though time be of the essence of the contract of insurance, and punctual payments essential to their prosperity, yet they may by their conduct waive it, and thus produce such an impression upon those dealing with them that it would be unjust to permit them to invoke the principle to their aid; and that in such a case as this, when the day seems never to have been insisted upon, but payment in a reasonable time theretofore or thereafter had been always allowed, the company should be held to be estopped from engrafting on this last receipt a condition. never exacted before.

The principle we lay down has been substantially decided by the courts of our sister States, and hinted at strongly, if not substantially ruled, by our own court. See 1 Big. Ins. & Ac. Cas. 406; 18. Barb. 541; 52 Mo. 469; 44 Penn. 259; 5 Otto, 326; 52 Ga. 640; 56 id. 339; 59 id. 812, and many other cases cited by counsel for defendant in error.

Indeed, the courts go so far as to hold that if Mrs. Tufts had offered this premium and it had been refused, on the 17th of May, still the company would have been bound, in such a case as the facts here make, on the ground that their habit had induced her tobelieve they would receive it then, and that they could not put her off her guard and take advantage of negligence or slowness rather on her part, engendered by confidence they had inspired in her. Much more when the company takes and keeps the money paid, ought it to be estopped setting up delay as a good ground to void the policy.

[Omitting minor matters.]

Judgment affirmed.

NOTE BY THE REPORTER.—In Seamans v. Northwestern Mut. Life Ins. Co., United States Circuit Court, District of Minnesota, 10 Rep. 799, a life policy provided that it should cease and determine" if the premium was not paid when due. The agent authorized to receive the premium was changed, but the company neglected to inform the insured of the change, although it had adopted a rule to do so in all cases. The insured tendered the premium in due time to the former agent, who refused it. Held, that there was no forfeiture; and could not be until a reasonable time thereafter, and that sixty days was not unreasonable. The court said: "In the present case it appears that in 1876 the company notified the assured that the Hennepin County Savings Bank, at Minneapolis, was its agent, to whom premiums should be paid. In March, 1877, the defendant appointed a new agent at Minneapolis, and when notices were in that month sent out to policy-holders, the company adopted a rule to send a circular with each notice, informing the assured of the place where, and the agent to whom payment should be made. The jury find that

Hawley v. Screven.

this circular was not sent to Seamans. He did not therefore know of the change of the agency, and naturally supposed he was to pay to the party to whom he had paid the year before. He sent his money in due time to that party. He did not send it to St. Paul, at which place he was informed there was an agent, because he had been notified that he must pay to the agent at Minneapolis. That the company understood it to be their duty to inform him of the change of the agency, is clear from the fact that they adopted a rule to do this in all cases, and omitted it in his case by oversight. Under the circumstances, I do not think the assured was bound to hunt for an agent in the city of Minneapolis to whom he could make payment. If he was bound to make reasonable inquiry, I think the evidence shows, that through his agent, he did so. The agent he sent to Minneapolis to pay the premium swears that he made considerable inquiry, and names several persons to whom he applied for the name and location of an agent to whom payment could be made. It is said, however, that he continued to neglect payment until the day of his death, about sixty days after the maturity of the premium. If he was excused from making payment on the day of maturity by the facts and circumstances stated, then he was entitled to a reasonable time before a forfeiture could be declared. In considering what time would be reasonable, we are to bear in mind that the company had, in fact, waived the time of pay. ment the previous year. The jury find that in 1876 the agent of the defendant at Minneapolis informed the assured that a delay of a month or two would not work a forfeiture, and the assured accordingly paid his premium for that year nearly a month after it was due, without objection on the part of defendant or its agents. The following authorities support the general views expressed: Ins. Co. v. Wolff, 95 U. S. 326; Ins. Co. v. Eggleston, 96 id. 572; Ins. Co. v. Norton, id. 234; Ins. Co. v. Pierce, 75 Ill. 426; Thompson v. Ins. Co., 52 Mo. 469; Mayer v. Ins. Co., 38 Iowa, 304; s. c., 18 Am. Rep. 34; Ins. Co. v. Warner, 80 Ill. 410; Ins. Co. v. Robertson, 59 id. 123. In Insurance Co. v. Eggleston, 96 U. S. 572; s. c., 17 Alb. L. J. 368, it was held that where an insurance company had been in the habit of notifying the assured of the time when, and place where premiuins were to be paid, he had reasonable cause to expect and rely on receiving such notice, and that the company was estopped from setting up that the policy was forfeited by the non-payment of a premium of which no such notice was given. To the same effect are Union Cent. Life Ins. Co. v. Pottker, 33 Ohio St. 459; s. c., 31 Am. Rep. 555; and Meyer v. Knickerbocker Life Ins. Co., 73 N. Y. 516; s. c., 29 Am. Rep. 200. See Prentice v. Knickerbocker Life Ins. Co., 77 N. Y. 483 ; s. C., 33 Am. Rep. 651; Whited v. Germania Fire Ins. Co., 76 N. Y. 415; s. c., 32 Am. Rep. 330.

"

HAWLEY V. SCREVEN.

(62 Ga. 347.)

Carrier · passenger — connecting lines — baggage.

A passenger purchased of the A. & G. Railroad Company, at Savannah, a through ticket for Jacksonville, and had his trunk checked by a check marked " A. & G. Railroad." That railroad was only the first of three con necting railroads between those points. The trunk was delivered by that railroad to the second, the passenger retaining the check, and was afterward lost. Held, that the passenger could recover therefor of the A. & G. Railroad Company.*

A

CTION for loss of baggage. The opinion states the facts. The plaintiff had judgment at the trial, and the court granted a new trial.

*See Nashville & C. R. Co. v. Sprayberry (8 Baxt. 341), post.

Hawley v. Screven.

R. R. Richards, for plaintiff in error.

Jackson, Lawton & Bassinger, for defendants.

WARNER, C. J. The plaintiff brought his action against the defendants as receivers of the Atlantic & Gulf Railroad Company to recover the value of a trunk and its contents, alleged to have been lost by the defendants' negligence as common carriers between the city of Savannah, Georgia, and the city of Jacksonville, Florida. On the trial of the case the jury, under the charge of the court, found a verdict for the plaintiff. A motion was made for a new trial on the grounds therein stated, which was granted by the court, and the plaintiff excepted.

It appears from the evidence in the record that the plaintiff, on the 6th of November, 1877, purchased a through ticket of defendants' agent at Savannah, for a passage by railroad from the latter place to Jacksonville, Florida, and that he paid full fare for the same; that he took passage on its cars with his trunk at Savannah for Jacksonville, the place of destination, the defendants' agent having delivered to him the customary through ticket for himself, and a brass check for his trunk marked "Atlantic & Gulf Railroad, 998." On his arrival at Jacksonville he presented his check and demanded his trunk, which defendants' agent failed to produce, and has continued to do so. The defendants proved at the trial that the route from Savannah to Jacksonville was over three different roads the Atlantic & Gulf Railroad, the Jacksonville, Pensacola & Mobile Railroad, and the Florida Central Railroad. The Atlantic & Gulf Railroad has its terminus at Live Oak in that direction. The train of the A. & G. railroad went to Live Oak where its engine was detached, and the rest of the train went on, drawn by the engine of the J. P. & M. Railroad, and the conductor of the latter road receipted the conductor of the A. & G. Railroad for thirteen pieces of baggage at Live Oak as being in good order, checked as follows, etc., including 998, the number of the plaintiff's check. The defendant sought to protect itself from liability for the loss of the plaintiff's trunk as a passenger on its road, under two decisions made by a majority of this court in Baugh v. McDaniel & Strong, 42 Ga. 641; E. T. & G. Railroad Company v. Montgomery, 44 id. 278, giving a construction to the 2084th section of the Code as to the liability of a railroad company in this State

Weldon v. Colquitt.

for the loss of goods beyond the terminus of its own road, and the only question made in the case now before us is one of law. If the defendant was liable under the law for the loss of the plaintiff's trunk when applied to the facts contained in the record, then the verdict was right, and the court erred in granting a new trial. The two cases cited and relied on by the defendant do not necessarily control the decision of the court in this case, which is a suit by a passenger for the loss of his baggage as such passenger, for which he held defendant's check, which was evidence of a contract of some sort at least, and the jury have found under the evidence that it was a contract on the part of the defendant to transport safely the plaintiff's trunk, either by itself or competent agents, from Savannah to Jacksonville, the place of destination, and in our judgment that finding was in accordance with the law. There is no evidence going to show that the defendant offered to deliver to the plaintiff his trunk at Live Oak and demanded its check therefor at that place, which goes to show what was the construction put upon the contract by both parties, as evidenced by the check delivered by the defendant's agent to the plaintiff. In view of the facts as disclosed in the record, and of the law applicable thereto, the court erred in granting a new trial.

Let the judgment of the court below be reversed.

WELDON V. COLQUITT.

Judgment reversed.

In a time of peace and order it is illegal to hold a court of criminal inquiry on Sunday, but bail may lawfully be taken on that day.*

A

CTION on bail bond. The opinion states the case. iff had judgment below.

The plaint

F. B. Hodges and Samuel Lumpkin, for plaintiffs in error.

Seaborn Reese, solicitor-general, for defendant.

*To same effect, Hammons v. State (59 Ala. 164), 31 Am. Rep. 13.

Weldon v. Colquitt.

BLECKLEY, J. On Sunday, the 21st of October, 1877, during divine service at a country church in Hart county, four men, residents of South Carolina, behaved in a violent, boisterous and disorderly manner, disturbing the congregation and causing it to break up and disperse. In the midst of the disorder a constable, who happened to be present, arrested them. One of them escaped. The constable conducted the other three before a justice of the peace, procured a warrant, and then detained them under the warrant, entering their arrest thereon. They were intoxicated, were without counsel, and could not procure any, but insisted upon being tried at once. The trial was commenced late in the afternoon, and was concluded after dark. It took place at the residence of the justice of the peace, which was about half a mile from the church and some nine miles from Hartwell, the county town. The State was represented by an attorney at law, and the prisoners had the assistance of a non-professional friend. Twenty-three witnesses were examined, ten for the prosecution and thirteen for the defense. The costs of the proceeding, as registered on the warrant, amounted to $37.80. At the close of the investigation the presiding magistrate passed and signed officially an order in the following terms: "After hearing the testimony of the parties on both sides it is held by the court that there is probable cause of the guilt of the within charge against the prisoners, and it is ordered by the court that the defendants give bond and security in terms of the law, or be committed to the jail of said county, this 21st day of October, 1877." One of the prisoners, Taylor, gave bond accordingly in the penal sum of eighty dollars, for his appearance at the Superior Court to answer for the offense, with Weldon and Boleman as bail. The bond was delivered on the day of the arrest and trial, about nine or ten o'clock at night. It bore the same date as the order of commitment, and recited that order as well as the arrest. Afterward, in the Superior Court, a bill of indictment was preferred and found against Taylor for the offense, under section 4574 of the Code, and on his failure to appear a judgment nisi forfeiting the bond was rendered. A scire facias issued and was served upon the bail only, a return of non est being made as to the principal. The bail pleaded to the scire facias, first, that the bond was illegal and void because made and delivered on the Sabbath day; and secondly, that both the judgment of the magistrate requiring the bond and the bond itself were illegal and void, because there was no necessity VOL. XXXV -17