Gonackey v. Gen. Accident

• Decision Date: 29 June 1909
• Docket Number: (No. 1,711.)
• Citation: Gonackey v. Gen. Accident, 65 S.E. 53, 6 Ga.App. 381 (Ga. App. 1909)
• Parties: GONACKEY . v. GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORPORATION.
• Court: Georgia Court of Appeals

65 S.E. 53

6 Ga.App. 381

GONACKEY .

v.GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORPORATION.

(No. 1, 711.)

Court of Appeals of Georgia.

June 29, 1909.

1. Infants (§ 58^*)—Contracts—Avoidance-Personal Property.

All contracts of an infant in relation to personal property, whether executory or executed, may be disaffirmed by the infant during his minority, and for the purpose of enforcing such disaffirmance the infant can bring suit in law or equity by guardian or next friend.

[Ed. Note.—For other cases, see Infants, Cent. Dig. §§ 149-160; Dec. Dig. § 58.*]

2. Infants (§ 58*)—Contracts—Avoidance— Restitution.

Where an infant beneficiary under a policy of insurance has made a settlement with the company for less than the face value of the policy, he can nevertheless by next friend or guardian during his minority sue for the full amount of the policy, and, if the amount paid to the infant by the company on the settlement has been spent or squandered by him, and he is not able to make restitution, the amount of the policy can be recovered without restitution. The doctrine that, in order to recover, a minor must first restore what he has received on the contract which he seeks to disaffirm, is applicable only to a case where he is able at the time of the disaffirmance to make restoration.

[Ed. Note.—For other cases, see Infants, Cent. Dig. §§ 149-160; Dec. Dig. § 58.*]

3. Insurance (? 642*)—Actions—Petition-Sufficiency.

In a suit to recover money on an insurance policy, failure to incorporate in the petition or attach thereto as an exhibit "what appears upon the face or in the body of the policy, " is an amendable defect, and should be taken advantage of by a special demurrer.

[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 642.*]

(Syllabus by the Court.)

Error from City Court of Fitzgerald; D. B. Jay, Judge.

Action by E. B. Gonackey, by next friend, against the General Accident, Fire & Life Assurance Corporation. Judgment for defendant, and plaintiff brings error. Reversed.

Elizabeth Bell Gonackey, a minor, by next friend, brought suit for $300 on a policy of insurance issued by the defendant on the life of her brother in which she was named as sole beneficiary. The petition makes the usual allegations showing liability, except that it fails to set forth or to attach as an exhibit the contract of insurance or the essential parts thereof. As a reason for this failure, it is alleged that the policy was surrendered to the company before the suit was brought under the following circumstances: Within 10 days immediately following the death of the insured petitioner was paid $50 by one Robinson, an agent of the company, when she delivered the policy to him and signed a receipt of some kind for the money paid to her. She delivered the policy to the company for the reason that she thought she was entitled to receive no more than $50 thereunder, but, subsequently ascertaining that she was entitled to the full amount of the policy, she made a demand on the company for it through her next friend through whom she now sues, which demand was refused, and the policy contract is in the possession of the company. It is also alleged that the petitioner is unable to pay the $50 which was paid to her on the policy because she has spent the whole amount, and is unable to make any restitution. The company filed a general demurrer, making the contentions (1) that the contract made by the infant beneficiary with the insurance company in settlement of the policy was fully executed and cannot be avoided during infancy; (2) that the infant must make restitution of the $50 to the company before disaffirming the contract. In the argument before this court, the further point was made that the court below properly sustained the demurrer because the plaintiff did not attempt to comply with the mandate of Civ. Code 1895, § 4963, which requires that, in suits to recover money on insurance policies, "what appears upon the face or in the body of the policy" shall be set out in the petition or attached thereto as an exhibit. There was no special demurrer. The court sustained the general demurrer and dismissed the petition; and error is assigned on this judgment.

O. H. Elklns, for plaintiff in error.

Crum & Jones, for defendant in error.

HILL, C. J. (after stating the facts as above). All contracts relating to personalty made by an infant can be avoided during minority as well as after the infant has attained majority, and this right applies to executed as well as to executory contracts. Harris v. Cannon, 6 Ga. 387; Smith v. Smith, 36 Ga. 189, 91 Am. Dec. 761; Nathans v. Ark-wright, 66 Ga. 186; Clark on Contracts (2d Ed.) 164; 22 Cyc. 611. These authorities announce the rule that while a deed to land executed by an infant cannot be disaffirmed during his minority, although he may enter on the land and take the profits until the time arrives when he has the legal capacity to affirm or disaffirm, this rule does not apply to a contract relating to personalty, and that such a contract may be avoided by him while he is still an infant. Clark in his work on contracts, supra, states that the rule is general and almost universal that an infant may avoid any contract relating to his personal property before he becomes of age, and cites many authorities in support of this dictum. Probably the statement of the rule that an infant cannot disaffirm his deed to land is subject to the exception that if, in order to protect the infant in his rights, it should be necessary that the deed be avoided before bis majority, it might be done by him suing by his guardian or next friend.

2. Following the weight of authority on this subject, it has been held by the Supreme Court that, while an infant should not be allowed to avoid his contract without making restitution of any money or property which he has received under the contract, yet he is not required to make restitution as a condition precedent to a disaffirmance,...