Burke v. Life Ins. Co. of Ga.

• Decision Date: 07 November 1961
• Docket Number: Nos. 1,3,No. 38818,2,38818,s. 1
• Citation: 123 S.E.2d 426,104 Ga.App. 865
• Parties: Mrs. L. E. BURKE v. LIFE INSURANCE COMPANY OF GEORGIA
• Court: Georgia Court of Appeals

Page 426

123 S.E.2d 426

104 Ga.App. 865

Mrs. L. E. BURKE v. LIFE INSURANCE COMPANY OF GEORGIA.

No. 38818.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Nov. 7, 1961.

Rehearing Denied Nov. 29, 1961.

Syllabus by the Court.

The petition of the plaintiff beneficiary stated a cause of action against the defendant insurance company for both the face amount of the policy and the accidental death benefits provided therein; and the trial court erred in sustaining the general and special demurrers thereto.

Leona E. Burke, beneficiary under a policy of life insurance issued to her husband, brought suit against the Life Insurance Co. of Georgia seeking to recover the death benefits of the policy. The following is a condensed statement of all that is material to an understanding of the questions ruled on in our decision.

The petition alleges that the plaintiff is the beneficiary named in an insurance policy issued to her husband; that such policy was in force and effect when her husband was accidentally drowned on May 14, 1960; that the policy was issued for the face amount of $1,034; that the face amount of the policy was increased to $1100 by an endorsement placed thereon by the company; that the policy further provides that in the event of accidental death, 'the company will pay in addition to any other sums due under this policy and subject to its provisions an accidental death benefit equal to the amount of life insurance then payable at death. * * *'; that the plaintiff gave proper notice of the death of the insured; that demand on the defendant for payment was made on May 14, 1960, and that the defendant refused to pay the plaintiff more than $1,034 in full settlement of its liability under the policy.

The petition further alleges that because the defendant acted in bad faith, the defendant is liable for 25% penalty, plus reasonable attorney's fees, and that 'The amounts due plaintiff and for which she prays the judgment of this court are as follows: a. Face amount of the policy $1,100, b. Additional Accidental Benefits $1,100, c. Bad Faith Penalty in the amount of 25% of the sum due $550, d. Reasonable Attorney's Fees of $350.' The defendant filed general and special demurrers to the petition. By amendment, the plaintiff attached a copy of the insurance contract as an exhibit.

On January 21, 1961, the trial court entered the following order: 'The demurrers, general and special, of the defendant to the plaintiffs petition having been duly filed in court, and the plaintiff having amended her petition by attaching thereto a copy of the original insurance policy issued February 18, 1946 to Ace David Burke Jr. with all riders attached, by amendment allowed December 13, 1960, which amendment included all the conditions on the reverse side of the policy, and plaintiff's counsel admitting that the defendant had offered to pay $1,034 in settlement of said policy. And the defendant having renewed its demurrers to the petition as amended, And said matter coming on to be heard before me this January 21, 1961 as set by prior order of court, It is ordered that the said demurrers of defendant as filed be and the same are hereby sustained and the said petition is stricken and dismissed.'

Plaintiff assigns as error the sustaining of the general and special demurrers.

Walton Hardin, Washington, for plaintiff in error.

Clement E. Sutton, Washington, for defendant in error.

JORDAN, Judge.

1. 'A general demurrer to a petition should not be sustained if the facts entitle the plaintiff to any of the substantial relief prayed.' Davis v. Garden Hills Corp., 172 Ga. 311, 157 S.E. 472. '* * * [I]f the petition sets forth a right of recovery in any amount against the defendant, * * * the general demurrer should have been overruled.' Conway v. Housing Authority of Atlanta, 102 Ga.App. 333, 116 S.E.2d 331, 333. See also Regenstein v. State Revenue Commission, 58 Ga.App. 94, 197 S.E. 865; Harris County v. Brady, 115 Ga. 767, 42 S.E. 71.

In Augusta & Savannah R. Co. v. Lark, 97 Ga. 800, 25 S.E. 175, the court stated: 'In determining whether or not the trial court erred in overruling a general demurrer to a declaration, this court cannot look beyond the declaration itself, nor consider a 'written agreement of facts entered into between the parties for the purposes of said demurrer.' Such agreement is no part of the pleadings, and cannot be treated as an amendment to the declaration unless made so by a proper order.' In ruling upon a general demurrer the court can look only to the petition and attached exhibits, and cannot consider extraneous matters such as a proffer of a writing which counsel agree the court may consider (Rembert v. Ellis, 193 Ga. 60, 17 S.E.2d 165, 137 A.L.R. 479), the defendant's answer (Crowley v. Calhoun, 161 Ga. 354, 130 S.E. 563), or defendant's cross action (Sims v. Etheridge, 169 Ga. 400, 150 S.E. 647).

'It is true that a petition, when considered on general demurrer, must be construed most strongly against the pleader * * *. But this does not mean that the petition must be given a strained construction, in violation of its reasonable and necessary intendment.' Toler v. Goodin, 200 Ga. 527, 37 S.E.2d 609, 615. See also New Cigar Co. v. The Broken Spur, Inc., 103 Ga.App. 395, 119 S.E.2d 133.

Applying these principles of law to the instant case, the petition clearly sets forth a cause of action. In ruling upon the general demurrer, the court should not have considered a statement of the plaintiff's counsel that the defendant offered to pay a portion of the amount sued for. Though the petition alleges the defendant refused to pay more than $1,034, this allegation should not be construed to mean the plaintiff has received such amount. At most, it could only mean a tender of this amount (without deciding such issue) which would not extinguish the liability of the defendant under the contract, but would only go to relieve the defendant from payment of court costs and interest from the date the tender was made, if, in fact, tender was made. Ragan v. Newton, 27 Ga.App. 534, 109 S.E. 412; Jones v. Peacock, 29 Ga.App. 240, 114 S.E. 646; Renfroe v. Butts, 192 Ga. 720, 16 S.E.2d 551; Ward v. McGuire, 213 Ga. 563, 100 S.E.2d 276. The sustaining of the general demurrer in the instant case adjudicated this plaintiff had no cause of action in any amount against this defendant. Plaintiff's petition having set forth a cause of action, the trial court erred in sustaining the general demurrer.

2. Grounds 1, 2, 3, 5, and 6 of the special demurrer complain of the failure of the plaintiff to attach a copy of the insurance policy to the petition. The plaintiff, by an amendment, attached such policy as an exhibit, which met the criticism of these demurrers. The trial court erred in sustaining these grounds of the demurrer.

3. We next come to an examination of the policy in an effort to determine whether or not the accidental death benefit provisions of this policy were in effect at the time of the loss thereunder.

The language in the instant policy is as follows: 'Upon receipt at the home office of the company of due proof that the insured after attaining age ten and prior to attaining age sixty, and while the policy is maintained in full force and effect during the premium paying period, has sustained after the date of this policy bodily injuries effected solely through external, violent and accidental means, of which except in the case of drowning there is a visible contusion or wound on the exterior of the body of the insured, causing death, and if such death occurred within ninety days after such injuries were sustained, and as the direct result thereof independent of all other causes, the company will pay in addition to any other sums due under this policy and subject to its provisions an accidental death benefit equal to the amount of life insurance then payable at death, * * *.' (Emphasis supplied).

The meaning to be given the double indemnity provision here depends upon whether the words 'during the premium paying period' constitute a limiting phrase or a descriptive phrase. Since the insured has no duty to maintain the policy except during the premium paying period it appears that these words merely describe the period during which the policy is maintained without adding any limitation not otherwise existing. The word 'while,' also, adds no limitation, since it means 'as long as,' 'at the same time' and 'at or during which time.' Webster's International Dictionary. Accordingly, a slight transposition of words without any alteration in meaning results in the following: 'If the insured after attaining age 10 and prior to attaining age 60, and during which time the policy is maintained during the premium paying period in full force and effect, has sustained * * * bodily injuries * * * causing death * * * the company will pay * * * an accidental death benefit.' Accordingly, the beneficiary is entitled to double indemnity only if the insured died after reaching age 10 and before reaching age 60, and then only if the policy has been properly maintained, but this duty to maintain occurs only during the premium paying period and is descriptive of the time during which the insured must keep it in full force and effect, it being automatically in that status at all other times.

'Furthermore, any exception in a policy of insurance altering the terms of general liability is to be taken and construed most strongly against the insurer.' Atlas Assurance Co. v. Lies, 70 Ga.App. 162, 165, 27 S.E.2d 791, 793. If this provision in the instant policy is construed otherwise it would result in unequal advantage to policy holders between age 10 and age 60, some of whom might receive 10 years of accident protection, some only one, and some none. For example, if a policy were taken out on an infant at birth it would be fully paid by the time he reached 10 years of age; accordingly, he would never receive any double indemnity...