Imágenes de páginas


Our statute defines usury as "the reserving | sum of money, any rate of interest greater and taking, or contracting to reserve and than 8 per centum per annum, either directtake, either directly or by indirection, a ly or indirectly by way of commission for greater sum for the use of money than the advances, discount, exchange, or by any conlawful interest.” Civil Code 1910, § 3427. tract or contrivance or device whatever.” The Code (§ 3436) further declares : “It All laws respecting the rate of interest shall not be lawful for any person, com charged for the loan of money by individuals pany, or corporation to reserve, charge, or are applicable to banks. Civil Code 1910, $ take for any loan or advance of money, or 2336. Titles to property made as a part of forbearance to enforce the collection of any an usurious contract or to evade the laws

II. In periodical payments.

lawful rate. McCall v. Herring, 116 Ga.

235, 42 S. E. 468. The taking of interest annually in ad- The statutes in some jurisdictions make vance at the highest legal rate, computed it lawful to take interest in advance for a on the amount to be paid by the borrower, certain short period. These statutes, by apand not merely on the amount received by plication of the doctrine expressio unius est the borrower, is not usury under a statute exclusio alterius, are held to make unlawful providing that the rate of interest agreed the taking of interest in advance for a upon, not to exceed the maximum, may be period longer than that named. taken yearly or for any shorter period or Thus, a statute making it lawful to take in advance if so expressly agreed. Steen v. interest in advance for twelve months renStretch, 50 Neb. 572, 70 N. W. 48.

ders the taking of interest for a longer See Purvis v. Frink, 57 Fla. 519, 49 So. period than twelve months in advance usu1023, and Newton v. Woodley, 55 S. C. 132, rious. Ellis v. Terrell, 109 Ark. 69, 158 32 S. E. 531, 33 S. E. 1, supra.

S. W. 957. The court expresses an opinion
that the taking of interest in advance for

a longer period than twelve months is usuIII. For what length of time allowed. rious in the absence of statute.

Without making any distinction between Whether or not the taking of interest at long and short term loans, it has been held. the highest legal rate in advance is usury in case of long-term loans that the taking is sometimes made to defend upon the of interest in advance at the highest legal length of time the note has to run.

rate for a long term is usury. Interest by way of discount may be taken Thus, under a statute making valid any, in advance for short periods. Crowell v. rate of interest which may be agreed upon Jones, 167 N. C. 386, 83 S. E. 551.

not exceeding $10 per year upon $100, upon That interest paid in advance on a short- any loan or forbearance of money, and proterm loan is not usurious is the opinion viding that “the rate of interest so agreed expressed obiter in Howell v. Pennington, upon may be taken yearly or for any 118 Ga. 494, 45 S. E. 272, but that point shorter period or in advance if so expressly is not decided.

agreed,” the reservation of 3 per cent on a This point was also reserved in Patton v. loan for a period of five years, together Bank of Lafayette, 124 Ga. 965, 5 L.R.A. with the giving of a note for the amount (N.S.) 592, 53 S. E. 664, 4 Ann. Cas. 639, actually received by the borrower plus the where the taking of interest in advance on interest so reserved, which amount bore ina short-time loan was held not to be usu- terest at the rate of 7 per cent, is usurious. rious where the days of grace had not teen Allen v. Dunn, 71 Neb. 831, 99 N. W. 680. counted, as the holder of the note (a bank) The taking of only a part of the interest might have done, and therefore the rate of in advance has been treated as usurious interest actually received was within the without any discussion, where the per cent legal rate.

thus taken in advance added to that reIn Howell v. Pennington, supra, the entire served in the note amounted to the highest amount of the loan was given to the bor- legal rate. rower, who thereupon executed a note to Thus, a loan of $200 for five years, in the lender for the amount of the interest which $40 was reserved in advance and five for the term of the loan, together with in interest notes for $12 each were given, was terest on this interest. This was held to treated as usurious in Ellis v. Terrell, sube in excess of the lawful legal rate, and pra. The court states that $160 bearing therefore usurious.

interest at 10 per cent, the highest legai See Willett v. Maxwell, 169 Ill. 540, 48 rate, for five years, would require $240 to N. E. 473, supra.

discharge, while under the plan involved A loan for one year is a short-term loan. the debtor was required to pay $260, or $20 Crowell v. Jones, supra.

more than legal interest. See Covington v. Fisher, 22 Okla. 207, 97 A loan of $1,600 for five years, in which Pac. 615, and Webb v. Pahde, Tex. Civ. $80 was reserved and 7 per cent contracted App. 43 S. W. 19, supra.

to be paid, was held to be usurious where A loan having five years to run was held the rate was 8 per cent. McCall v. Hera long-term loan so as to make it usurious ring, supra. where the aggregate of the amount reserved See Allen v. Dunn,


W. A. E. and that contracted to be paid exceeded the

[ocr errors]
[ocr errors]

against usury are void. Civil Code 1910, §| tom of banks to individuals is not allowable 3442. That interest at the highest legal rate on any proper basis of logic, and is defensicannot be reserved in advance in loans ex- ble only on the principle of uniformity. In tending over a year will not be controverted. this connection it may be well to notice that Numerous decisions establish that proposi- j our statute applies the laws of interest and tion. Is there any proper ground of differ- usury as affecting individuals to banks, and entiation between reserving interest at the this affords strong ground for the conclu. highest legal rate on long-term loans and in sion that banks cannot ingraft on the law taking such interest in advance on short- / any usage or custom of banks variant with term loans, within the purview of our stat- the law of usury. Perhaps a majority utes ? It has been stated, in the course of of the American courts are in line with the the argument in several of the opinions of English decisions, and extend to individuals this court, that the taking of interest in ad- the same privilege of discount, as affecting vance on short-term loans in the usual and the interest demanded in advance, as is al,ordinary course of business is not usurious. | lowed by the usage of banks. But our statMackenzie v. Flannery, 90 Ga. 591 (5), 599, ute expressly forbids an increase of the max16 S. E. 710; Union Sav. Bank & T. Co. v. imum interest rate by way of discount; and Dottenheim, 107 Ga. 606, 614, 34 S. E. 217 ; | usage cannot override a positive enactment McCall v. Herring, 116 Ga. 235, 243, 42 S. of law. In some jurisdictions statutes proE. 468. On the cther hand, it has been hibit banks from taking any greater rate of 'strongly intimated that the statutes respect interest or discount on any note or draft or ing interest and usury apply alike to short other security than a prescribed rate, but and long term loans. Howell v. Pennington, provide that such interest or discount may 118 Ga. 494, 45 S. E. 272. But the observa- be calculated and taken according to estabtions in those cases are obiter dicta, and lished rules of banking. In such cases it is the proposition is res integra in this state. held that the statute permits the taking of Patton v. Bank of La Fayette, 124 Ga. 965, interest in advance upon loans made by a 5 L.R.A. (N.S.) 592, 53 S. E. 664, 4 Ann. bank according to the established rules of Cas. 639.

banking. Ticonic Bank v. Johnson, 31 Me. In many jurisdictions a rule has been 414; Sanford v. Lundquist, 80 Neb. 414, 18 evolved that interest may be taken in ad L.R.A. (N.S.) 633, 114 N. W. 279, 118 N. vance on short-time paper without render- / W. 129. ing the transaction usurious. This rule of If we follow the words of the statute, law is said to have arisen out of the cus- there can be no legitimate differentiation of tom and practice of banks. Webb, Usury, short-term from long-term loans. Interest § 111; Tyler, Usury, 298. A very interest is compensation for the use of money. In ing history of the legislation respecting in determining whether a greater sum than the terest and usury in England and in the maximum rate has been reserved, we look to state of Georgia will be found in the opin- the amount received and the interest reservion of Mr. Justice Cobb, in Union Sav. Banked. If the borrower does not receive all of & T. Co. v. Dottenheim, supra. In England the principal stated in his obligation, be. by Stat. 12 Anne, 5 per cent was the maxi- cause of the reservation of enough to pay mum rate of interest, and all bonds and the interest, he does not receive the full assurances for the payment of any money amount of his loan. The real principal of to be lent, whereby a greater sum was re- his obligation is the amount which he actual. served or taken for interest, were declared ly receives. When he pays the principal as void. The practice grew up for bankers to stated in his obligation, from which the require payment of bank discount in addi- maximum rate of interest was deducted in tion to the highest rate of interest. In Au- advance, he pays a sum in excess of that riol v. Thomas, 3 T. R. 62, it was held that which he received, and the interest on it. in the discount of bills a banker may take This is true in both short and long loans, more than the highest legal rate, if the ex- and the only difference is that, as applied cess be taken only to defray the expense of to short loans, the disparity between the remittance, provided such excess be reason- sum reserved for interest and the actual inable, and that it be not a cover for usurious terest is not nearly so great as in long loans. interest. If the transaction was not a dis. The rate of interest and the effect of taking count in the way of trade, but was merely more than the maximum are peculiarly the employed as a means of obtaining more than subject of statutory regulation. Our lawthe legal rate of interest, it would be usur-makers were not content with a simple stateious. Marsh v. Martindale, 3 Bos. & P. 154. ment of the rates of interest and a general The rules and practices of the banks in this definition of usury (Civil Code 1910, $$ regard were extended to transactions be- 3426, 3427), but undertook to denounce as tween individuals and to pa per not nego unlawful for any person, bank, or other cortiated at a bank. The extension of the cus-'poration to reserve or take for any loan of

[ocr errors]




money any rate of interest greater than 8 finding that deceased suffered death from acper cent per annum, either directly or in- cidental drowning. directly by way of commission, discount, ex- Where a policy of accident insurance change, or by any contract or contrivance gives to the insurer the right, in case of or device whatever. The reference to dis death, to an autopsy by a medical adviser, count and exchange excludes the custom of to be accidental, and leaves a widów who

and the policy holder suffers death claimed banks in making these charges additional to is also sole beneficiary, the widow is the interest in the loan of money. The exclu- proper person upon whom to make a demand sion does not except short loans, and to for an autopsy. make such an exception would be to amend It is not necessary that the demand be and change the statute, which courts are made upon her in person, so long as it is powerless to do.

communicated to her. To constitute usury it is essential that

Such a demand, to be effective, must be there be, at the time the contract is execut- and at a reasonable time and upon a prop

made within a reasonable time after death, ed, an intent on the part of the lender to

er occasion, and when made upon the widow take or charge for the use of money a high between the death and burial of her huser rate of interest than that allowed by law. band, the language should leave nothing to Bellerby v. Goodwyn, 112 Ga. 306, 37 S. E. intendment, but should be free from doubt 376. If the intent be to take only legal in- or ambiguity. terest, a slight and trifling excess, due to

In this case a demand for an autopsy was mistake or inadvertence, will not taint the made by the claim auditor of the company

at 10:18 A. M. The funeral was set for 1 transaction with usury. Rushing v. Willingham, 105 Ga. 166, 31 S. E. 154. But if from a distance, and the body was being

Friends were beginning to arrive the purpose be to take from the money ad- prepared for burial. The demand was vanced, at the time of the loan, the legal present demand, calling for present commaximum rate of interest, the transaction pliance or refusal. The medical adviser, is a usurious one, and a deed to land given whom the auditor had in mind to perform to secure the debt is void by virtue of the the autopsy, was in Minneapolis, many statute (Civil Code 1910, $ 3442), which de- miles away. Compliance with the demand clares: “All titles to property made as a

would have caused a delay in the funeral

obsequies, the extent of which cannot be part of an usurious contract, or to evade the determined. The claim auditor had been laws against usury, are void.”

Beach v.

within 2 miles of the place of demand, inLattner, 101 Ga. 357, 28 S. E. 110.

vestigating the cause of death, since the day before.

Held, the demand for an auAll the Justices concur, except Fish, Ch. topsy was not made at a reasonable time or J., absent.

upon a proper occasion, and its refusal did not defeat right of action under the policy. Same - notice of claim waiver.

2. Failure to give notice of claim within MINNESOTA SUPREME COURT.

the time stipulated in the policy is waived,

where, in response to the notice, the comHENRY A. JOHNSON, Admr., etc., of A. L. pany denies liability wholly on another

ground. Swenson, Deceased, Respt.,

Appeal calling witness for cross-exBANKERS' MUTUAL CASUALTY INSUR

amination. ANCE COMPANY, Appt.

3. No reversible error can be predicated on a ruling permitting plaintiff to call the

claim auditor of defendant for cross-ex(129 Minn. 18, 151 N. W. 413.)

amination under the statute, where plaintiff

did not seek to avoid his testimony, and Insurance accident autopsy de- the form of the questions would have been mand.

proper had he been called as plaintitl's wit1. The evidence in this case sustains a


[ocr errors]


Headnotes by HALLAM, J.

(March 5, 1915.) Note. Accident insurance: validity, , show cause of death, see notes in 68 L.R.A.

construction and effect of provision 285 and 45 L.R.A. (N.S.) 404. in policy as to autopsy or examina- The propriety and necessity of these protion of body of assured.

visions have been recognized by the courts.

Thus, the provision in an accident policy Generally as to right of court to order | as to the examination of the body of the disinterment of corpse for evidential pur insured is a reasonable provision, and quite poses, see note in 32 L.R.A. (N.S.) 513; for necessary in accident insurance, as aifordprivilege as to information acquired by au- ing protection against fraud.

Wehle v. topsy, see note in 38 L.R.A.(N.S.) 1186; United States Mut. Acci. Asso. 153 N. Y. as to admissibility of findings of coroner to ' 116, 60 Am. St. Rep. 598, 47 N. E. 35.

[ocr errors]

PPEAL by defendant from an order of dead body belongs to the surviving husband

Washington or wife. County, denying a motion for judgment not- Larson v. Chase, 47 Minn. 307, 14 L.R.A. withstanding a verdict for plaintiff, or for 85, 28 Am. St. Rep. 370, 50 N. W. 238; a new trial, in an action brought to recover Brown v. Maplewood Cemetery Asso. 85 the amount alleged to be due on an accident Minn. 498, 89 N. W. 872; Lindh v. Great insurance policy. Affirmed.

Northern R. Co. 99 Minn. 408, 7 L.R.A. The facts are stated in the opinion. (N.S.) 1018, 109 N. W. 823; Sacks v.

Messrs. Simon Michelet and Clyde R. Minneapolis, 75 Minn. 30, 77 N. W. 563; White, for appellant:

Beaulieu v. Great Northern R. Co. 103 A demand for an examination of and au- Minn. 47, 19 L.R.A. (N.S.) 564, 114 N. W. topsy upon the body of the deceased was 353, 14 Ann. Cas. 462. duly made by the defendant company, and

The demand was made within a reasonunconditionally refused by the wife of the l able time after the death of the insured, and deceased, within the meaning and intent of that question should not have been submitthe policy of insurance.

ted to the jury. The demand was made upon the proper American Employers Liability Ins. Co. v. person. The right to the possession of a 'Barr, 16 C. C. A. 51, 32 U. S. App. 444, 68

The court in Whitehouse v. Travelers' Denial by widow of assured under acciIns. Co. Fed. Cas. No. 17,566, said: That dent policy, of permission to insurance comthe necessity of the provision in accident pany to exhume and examine her dead huspolicies that insurer shall have the right to band's body three or four weeks after it make an autopsy can be seen "where a man had been embalmed and buried, is not a might die and be buried, and it be alleged defense to an action on the policy by the afterward that the death was caused by beneficiary, who was a nephew of the deaccident, whereas, if an autopsy had been ceased, where there is no evidence that he made, it might have been shown otherwise." | refused to allow the body to be examined

either before interment, when it was in his Time for making demand for autopsy or

power to grant the request, or that he reexamination,

fused such request after interment, or that

it was in his power to grant the request to As will be seen, JOHNSON V. BANKERS' exhume. American Employers' Liability MUT, CASUALTY INS. Co., in holding that Ins. Co. v. Barr, 16 C. C. X. 51, 32 U. S. the demand for an examination must be App. 444, 68 Fed. 873. made at a reasonable time in order that a In Ewing v. Commercial Travelers' Mut. refusal shall work a forfeiture, finds sup- Acci. Asso. 55 App. Div. 241, 66 N. Y. port in the following cases:

Supp. 1056, affirmed without opinion in 170 Under the provision of an accident policy N. Y. 590, 63 N. E. 1116, it was held that giving insurer the right to examine the under a provision of an accident policy that body of the insured, failure to extend such “no claims shall be payable under this cerpermission upon demand made at a reasona- tificate unless any medical adviser of the ble time and place before burial will pre-l association shall be allowed to examine the clude recovery upon policy. Patterson v. person of the member in respect to any Ocean Acci. & Guarantee Corp. 25 App. D. alleged . cause of death, then and C. 46.

so often as may be necessary or reasonably But refusal to permit examination of required on behalf of the association," debody of assured ten days after interment mand for examination must be made before will not work forfeiture of policy where death; and so, refusal of demand made immediate notice of death was given to the nearly one month after interment will be company. Wehle v. United States Mut. no defense to an action on the policy. The Acci. Asso. 153 N. Y. 116, 60 Am. St. Rep. court said: "If this should be interpreted 598, 47 N. E. 35. The court stated that as conferring upon the insurance company the provision authorizing examination of an absolute and unconditional right to exthe body should have been availed of imme- hume and examine at least once the body diately upon receipt of notice of death, and of any member, on pain of forfeiture of that the delay in the demand was, as a the right to recover, it would be giving to matter of law, unreasonable in the absence it the full force which defendant claims of any fact or circumstances excusing it. for it. If a body should by the living rela

And in Root v. London Guarantee & Acci. tives be cremated instead of buried in the Co. 92 App. Div. 578, 86 N. Y. Supp. 1055, ground, no recovery could be had under the affirmed without opinion in 180 N. Y. 527, policy. But does this clause necessarily 72 N. E. 1150, it was held that under a

so much? The contract is with a provision of accident policies "that any member of the association; it is in part for medical adviser of the company shall be the benefit of the assured; in case of partial allowed to examine the

body of disability from accidental causes, the asassured,” a delay until day after burial in sured is to receive the benefits, and he making demand for autopsy was unreasona- agrees that the medical adviser shall be ble, as the company knew of the assured's allow to examine his person,-'the person death two days before the burial,

of the member.' There is no express stipu


Fed. 873; Wehle v. United States Mut. bility Assur. Corp. 122 Fed. 828; Moore v. Acci. Asso. 153 N. Y. 116, 60 Am. St. Rep. Wildey Casualty Co. 176 Mass. 418, 57 N. E. 598, 47 N. E. 35; Ewing v. Commercial | 673; Breeden v. Ætna L. Ins. Co. 23 S. D. Travelers' Mut. Acci. Asso. 55 App. Div. 417, 122 N. W. 348; Newman v. Springfield 241, 66 N. Y. Supp. 1056; Root v. London F. & M. Ins. Co. 17 Minn. 123, Gil. 98; Guarantee & Acci. Co. 92 App. Div. 578, 86 First Nat. Bank v. American Cent. Ins. Co. N. Y. Supp. 1055; Union Cent. L. Ins. Co. 58 Minn. 492, 60 N. W. 345; McCarvel v. v. Hollowell, 14 Ind. App. 611, 43 N. E. Phænix Ins. Co. 64 Minn. 193, 66 N. W. 277; Grangers’ L. Ins. Co. v. Brown, 57 367; Lake Superior Produce & Cold Storage Miss. 308, 34 Am. Rep. 446.

Co. v. Concordia F. Ins. Co. 95 Minn. 492, Messrs. Wilson & Thoreen, for respond- | 104 N. W. 560; Taylor-Baldwin Co. v. ent:

Northwestern F. & M. Ins. Co. 20 Ann. Cas. The appellant waived any defect in the 438, note; Canadian R. Acci. Ins. Co. v. notice of death and failure to file final proof Haines, 21 Ann. Cas. 919, note; Jennings v. of loss.

Brotherhood Acci. Co. 18 L.R.A.(N.S.) 109, 1 C. J. 473, 480; Fisher v. Travelers' Ins. note; Phænix Ins. Co. v. Taylor, 5 Minn. Co. 124 Tenn. 450, 138 S. W. 316, Ann. 492, Gil. 393; Butler Bros. v. American Cas. 1912D, 1246; Hurt v. Employers' Lia- Fidelity Co. 120 Minn. 157, 44 L.R.A. (N.S.) lation here that the defendant may dissect | without examination a fraud is likely to be the body of the member; no stipulation accomplished, to expose which the company for a forfeiture should any relative having has exhausted every other method known to lawful custody of the body of a deceased law. Grangers' L. Ins. Co. v. Brown, 57 member refuse to permit it to be dug up Miss. 308, 34 Am. Rep. 446. and dissected. I think the policy holder interpreting this clause to bind the member Upon whom demand must be made. so long as the member has control of his

In holding that the demand must be made own person would place upon it a rational construction. If his right to 'examine the upon a proper person, Johnson V. BANKperson of the member' in respect to any with Root v. London Guarantee & Acci. Co.

ERS' MUT. CASUALTY INS. Co. is in accord cause of death' is extended for a reasonable 92 App. Div. 578, 86 N. Y. Supp. 1055, time after death, and so long as the body affirmed without opinion in 180 N. Y. 527, is unburied or not finally disposed of, I 72 N. E. 1150, which held that forfeiture think the utmost limit of the privilege of claims under accident policies cannot be stipulated for would be reached. Tliereafter other interests than the wishes of the predicated on refusal of demand for aubeneficiary or the expressed wishes of the topsy, made upon one not a relative of the contracting member while living might rea

deceased, and who had no authority to sonably be expected to prevail. In any case,

grant the privilege. I think a party who alleges a contract

And see also American Employers' Liaright to invade the tomb, or the graves of bility Ins. Co. v. Barr, 16 C. C. A. 51, 32 the buried dead, should be sure of the lan- | U, S. App. 444, 68 Fed. 873. guage of his written agreement; it should at least be unmistakably clear, the purpose

By whom autopsy to be made. should be apparent, and the terms so plain It is not necessary that an insurance that inference or conjecture need not be company call the attending physician to resorted to to discover the true intent of make an autopsy, but it may call its own the contracting parties. If the policy in physician; and so, failure to call the at. question in plain terms stated to an appli- tending physician is not evidence per se of cant for membership that by accepting fraud on the part of the company. Whitemembership the applicant bartered to the house v. Travelers' Ins. Co. Fed. Cas. No. insurer the right at any time to dig up | 17,566. and examine or dissect his dead body, it is quite conceivable that there would be few Necessity that insurance company be notiapplicants for membership.”

fied of intended autopsy. Where no effort was made for an autopsy while the body of an insured was in the A provision of an accident policy that hands of the coroner, although liability was the insurer shall have the right to perform denied because of suicide by poison, and no an autopsy does not give the insurer exclureason is shown why an application to sive right to perform an autopsy, or require the court for an order to exhume the body that the company be notified of an intended was delayed until nine months after death, autopsy, and so failure to notify the comfour months after commencement of the pany of an autopsy will not forfeit the action, and two days before trial, such order policy. Crotty v. Continental Casualty Co. is properly refused. Union Cent. L. Ins. 163 Mo. App. 628, 146 S. W. 833. Co. v. Hollowell, 14 Ind. App. 611, 43 N. In Loesch v. Union Casualty & S. Co. E. 277.

176 Mo. 654, 75 S. W. 621, the accident An order compelling the exhumation of policy provided that if a post mortem be a body in plaintiff's control should be held without notifying the company in time granted only . upon strong showing that to have its medical examiner present, all

[ocr errors]
« AnteriorContinuar »