Faircloth v. Coleman

• Decision Date: 15 February 1955
• Docket Number: No. 18825,18825
• Citation: 86 S.E.2d 107,211 Ga. 356
• Parties: FAIRCLOTH v. COLEMAN.
• Court: Georgia Supreme Court

Page 107

86 S.E.2d 107

211 Ga. 356

FAIRCLOTH v. COLEMAN.

No. 18825.

Supreme Court of Georgia.

Feb. 15, 1955.

Syllabus by the Court.

Where the evidence demanded a finding that the insured had done substantially all he could to change the beneficiary in his insurance policy so as to make the proceeds payable to his mother, and where the insurance company filed its petition alleging that it was ready to pay the policy and asked that the court direct to whom payment should be made, and later paid the proceeds into court and was indifferent as to whom payment should be made applying the equitable principle that equity regards as done that which ought to be done and will carry out the intention and wishes of the insured, the trial court did not err in cirecting a verdict in favor of the mother.

After this court had held, when this case was here before, Lowery v. Independent Life & Accident Co., 209 Ga. 753, 76 S.E.2d 5, that the trial court erred in failing to sustain the general demurrer filed by one of the interpleaders, Mrs. Etta Mae Lowery Faircloth, to the petition of the plaintiff insurance company, and in failing to sustain a special demurrer to paragraph 6 of the petition which complained of the failure of the petitioner to set out when and in what manner the beneficiary was changed, and before the judgment of this court was made the judgment of the tiral court on remittitur the plaintiff insurance company amended its petition, in which it set out a copy of the insurance policy, a copy of the application for change of beneficiary made by the insured, and copies of demands for 'proofs of death' filed with the company by the two interpleaders, Mrs. Etta Mae Lowery Faircloth and Mrs. Allie C. Coleman, and alleged other facts necessary to meet the objections of this court. So far as the record shows, demurrers were not filed to the petition as amended. Thereafter, the trial judge entered an order which recited that, after hearing evidence, the plaintiff insurance company was allowed to pay the proceeds of the policy into the registry of the court and be discharged from further liability. The case proceeded to trial before a jury, and the trial judge directed a verdict in favor of the defendant Mrs. Allie C. Coleman, one of the interpleaders, and in sustaining said motion stated: 'Gentlemen of the jury, this policy is the law of the case. It specially provides in there that the one who has paid the expenses of the last illness, the funeral expenses, the policy provides that they are the ones entitled to the money. It is undisputed in the case that Mrs. Coleman paid it. That number one. On the other hand it is undisputed in this case that the beneficiary was changed to the mother of the deceased, Mrs. Allie C. Coleman; therefore, it's my duty as I understand the law, those two theories, Mrs. Faircloth could not recover, lost her right to it. She admitted that she had not paid any of the expenses. It is admitted that Mrs. Coleman paid them; therefore I direct a verdict for claimant, Mrs. Allie C. Coleman for the amount of $750, full face value of the policy, because it is shown by undisputed evidence that she paid $753. I direct a verdict for that amount.'

It is undisputed from the pleadings and evidence: that the policy was in force at the time of the death of the insured on December 27, 1952; that his wife, Mrs Etta Mae Lowery Faircloth, appeared as beneficiary therein at the time of his death; that the insured was authorized by the provisions of the policy to change the beneficiary, as shown by the following provision therefrom: 'with the consent of the company, the insured may from time to time while this policy is in force change the beneficiary by request to the Home Office, upon the Company's prescribed form, accompanied by the policy, such change to take effect only upon endorsement hereon'; that in August, 1952, the insured's wife took the insured while in a serious condition to his mother's and left him, where he remained until his death; that, on or about December 8, 1952, the insured went to the office of the insurance company at McRae, advised the district agent that he had lost or misplaced his policy, and requested of the district agent of the company that the beneficiary be changed; and that he executed on the standard form of the company a request for change of beneficiary from his wife to his mother, Mrs. Allie C. Coleman, and that he paid up the premiums to date and kept the policy in force thereafter.

The petition as amended, which along with the other pleadings was introduced in evidence by the plaintiff in error, Mrs. Etta Mae Lowery Faircloth, contained a photographic copy of the request for change of beneficiary, and an allegation that it was mailed to the Macon office but had been lost, destroyed, or misplaced in the mails. The evidence further showed without dispute that, after the insured's death, the mother paid hospital and funeral expenses, which totalled more than the proceeds of the policy. The defendant, Mrs. Faircloth, testified: that she would want the bills of his illness, hospital, and burial expenses paid out of the proceeds of the policy; that she knew Mrs. Coleman had paid the funeral bill; and that there were other bills owed by her husband that she would like to pay also; and that she had the insurance policy, and no one had asked her for it.

Mrs. Faircloth's motion for new trial on the general grounds, and an elaboration thereof in the amended motion, to the effect that the...