Continental Cas. Co. v. Stephenson, 41608
| Decision Date | 18 November 1965 |
| Docket Number | No. 41608,No. 1,41608,1 |
| Parties | CONTINENTAL CASUALTY COMPANY v. DeForrest STEPHENSON |
| Court | Georgia Court of Appeals |
McCamy, Minor, Vining & Phillips, Robert L. Vining, Jr., Dalton, for plaintiff in error.
Frank M. Gleason, Rossville, for defendant in error.
Syllabus Opinion by the Court
1. The first count of this petition, alleging that the plaintiff was an insured under a group policy of accident insurance by the terms of which the defendant insurance company agreed to pay to him, for total disability resulting from sickness, $422 per month until he reached the age of 65; that the plaintiff was totally disabled from fibromyositis, osteoarthritis and radiculitis secondary to intervertebral degeneration and other stated physical conditions; that the defendant recognized its liability and paid benefits from October 8, 1961, to January 8, 1964, and that it has paid nothing since, although plaintiff has continued to be totally disabled, sets out a cause of action for payments due from that time on to the date of filing of this action. The trial court properly overruled the general demurrer to count 1 of the petition.
2. The allegations of count 2 that the defendant has tendered an anticipatory breach of contract, which plaintiff accepts, and is therefore liable in this action for all future payments for such total and permanent disability until the plaintiff reaches the age of 65, are unsupported by fact. The breach which will form the basis for this type of action is an unqualified repudiation of the entire contract prior to the time for performance. Thus, in Travelers Ins. Co. v. Lancaster, 51 Ga.App. 390, 392, 180 S.E. 641, the insurer denied all liability on the ground that the disability provision of the policy was not in force. Here, it appears from the allegations of count 2 that the defendant, after paying some of the monthly disability installments, informed plaintiff's attorney 'that it did not consider plaintiff totally and permanently disabled, contending that there was no liability under its policy, it being contended that plaintiff was not totally and permanently disabled. * * *' The refusal was not on the ground that the defendant repudiated or denied the validity of the contract, but on the ground that under the contract there was no obligation to pay. The repudiation must go to the whole contract. Mendel v. Converse & Co., 30 Ga.App. 549(1), 118 S.E. 586. Further, as...
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