Berry v. Travelers Ins. Co.
| Decision Date | 13 March 1941 |
| Docket Number | 28783. |
| Citation | 14 S.E.2d 196,64 Ga.App. 727 |
| Parties | BERRY v. TRAVELERS INS. CO. et al. |
| Court | Georgia Court of Appeals |
Rehearing Denied April 3, 1941.
Syllabus by the Court.
The case was transferred from the Supreme Court, 190 Ga. 772, 10 S.E.2d 753.
O Lee White, of Atlanta, for plaintiff in error.
Neely Marshall & Greene, of Atlanta, for defendant in error.
Mrs Willie Mae Berry, as beneficiary, brought suit against the Travelers Insurance Company and Atlanta Woolen Mills, the petition alleging that there was on December 18, 1933, and continuously therefrom, to and including February 10, 1938, a master life-insurance policy issued and delivered to the Atlanta Woolen Mills by the defendant insurance company, whereunder Artie Gray, the mother of the plaintiff and an employee of the Atlanta Woolen Mills, held a certificate of insurance in the sum of $1,000; that the original and duplicate of the master policy were in the possession of the defendants and a copy thereof had been refused the plaintiff, and that for this reason a copy of the master policy could not be attached to the petition, but that a copy of the certificate was attached as Exhibit A; that the insured employee died on or about February 10, 1938, before attaining the age of sixty years, and that the said certificate had been issued to the insured after she had completed more than one year of service with the employer; that on or about June, 1937, the insured became wholly disabled and prevented by bodily disease, cancer, from engaging in any occupation or employment for wage or profit and so continued until her death on February 10, 1938; that on December 20, 1937, the defendants wrongfully, wilfully, and maliciously attempted to cancel the said master or group policy for the purpose of preventing payment to the plaintiff beneficiary, and that at that time the disability of the insured was known to them; that the certificate of insurance was in full force and effect on December 18, 1933, to and including the date of the death of the insured, and all premiums had been paid until and including the date of the death of the insured, and from that date the defendants waived payments of and refused to accept further payments on the certificate of insurance for the reason that the insured was not required under the policy and the practice of the defendants to pay further premiums while so wholly and continuously disabled and while she remained an employee of the Atlanta Woolen Mills, it being alleged that she was an employee continuously from and previous to the date of her becoming continuously and wholly disabled in June, 1937, and to and including the date of her death on February 10, 1938; that the defendant insurance company expressly denied liability on February 28, 1938, and declined the claim of the plaintiff, on the ground that at the time of the insured's death no insurance was in force, and said waivers have repeatedly been made verbally and in writing on several dates since that time; that the insurance company has been unreasonably litigious in refusing to pay any benefits, which refusals are in bad faith, and by reason thereof the plaintiff is entitled to recover against each of the defendants judgment for the sum of $1,000 as the full amount of the benefits provided for under the certificate, with interest, and 25 per cent. thereon, namely $250, because of the bad faith of the defendants in maliciously attempting on December 20, 1937, to cancel the insurance policy to prevent payment, while knowing of the insured's disability and her approaching death, and in declining to pay the benefits under the certificate, and because of such acts the plaintiff is also entitled to an additional 50 per cent. of the amount of the certificate as reasonable attorney's fees in prosecuting her action. Judgment was prayed for the amount of the certificate, interest, penalty, and attorney's fees.
The copy of the certificate attached to the petition provides that "under and subject to the terms, conditions and provisions of a policy of group life insurance, No. G7281, issued and delivered to Atlanta Woolen Mills *** the life of Artie Gray (hereinafter called the employee) is insured initially for the sum of one thousand (1000) dollars, payable to Willie Mae Berry, daughter, as beneficiary," and that The certificate also provides for a conversion privilege, whereby any employee of the employer covered under the group policy, in case of the termination of his employment for any reason whatsoever, shall be entitled to have issued to him, without further evidence of insurability, and upon application made as described, and upon payment of the applicable premium, a policy of life insurance, but not term insurance, in an amount equal to the amount of the employee's protection under the certificate at the time of the termination of employment, which conversion shall immediately and automatically terminate and cancel any insurance of the employee then in force under the certificate, the amount of which is to be determined as specified in the certificate.
By amendment the plaintiff alleged that at no time prior to the death of the insured did the insurer or the plaintiff know the contents of the master policy, or that there was any substantial difference between it or the certificate, particularly with reference to the provisions under which the policy would lapse, the provisions in that respect being more favorable to the insurance company in the master policy than to the insured, the master policy being held exclusively by the insurance company "and/or" the Atlanta Woolen Mills, a copy of which was not furnished to plaintiff or her attorney until the latter part of 1939, about a year after the death of the insured, although repeatedly theretofore the plaintiff's attorney had requested the insurance company to furnish a copy, which request was denied until the latter part of 1939; that the plaintiff "and/or" the insured were led by the insurance company "and/or" the Atlanta Woolen Mills to believe until after the death of the insured and the time when the final premiums were paid that the provisions of the certificate as to the lapsing of the insurance governed the rights of the insured, and that it would be inequitable for the insurance company to be permitted, after the death of the insured, to insist upon the master policy being attached to the petition, for reasons above set out and because the provisions as to termination of the insurance are in the master policy substantially different from those contained in the certificate and more favorable to the insurance company.
The defendants filed general and special demurrers, one of the special demurrers of each attaching the petition on the ground that no copy of the master or group policy was set forth. This special demurrer of each of the defendants was sustained, no ruling on the general demurrers being made at the time, and the plaintiff was required to set up a copy of the master policy. The plaintiff amended by setting up a copy and alleging in substance that on numerous occasions after the death of the insured the insurance company, upon demand refused to show her or her attorney a copy of the master policy taking the unqualified position that no insurance was in force at the time of the death of the insured, but did, in the latter part of 1939, after the filing of her suit, furnish a copy, and that, in compliance with the order of court, a copy of such master policy, as furnished by the defendant's counsel, is attached to the petition. The copy attached to the petition...
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