Jackson v. The Southern Mut. Life Ins. Co.

• Decision Date: 30 June 1867
• Citation: 36 Ga. 429
• Court: Georgia Supreme Court
• Parties: WILLIAM E. JACKSON and GEORGE F. JACKSON, executors of JOHN K. JACKSON, plaintiff in error. v. THE SOUTHERN MUTUAL LIFE INSURANCE COMPANY, defendant in error.

36 Ga. 429

WILLIAM E. JACKSON and GEORGE F. JACKSON, executors of JOHN K. JACKSON, plaintiff in error. v. THE SOUTHERN MUTUAL LIFE INSURANCE COMPANY, defendant in error.

Supreme Court of the State of Georgia

(Milledgeville, June Term, 1867.)

Note.—Warner, C. J., did not preside in this case.

Attachment. Demurrer. Decided by Judge Snead, City Court of Augusta, November Term, 1865.

The Southern Mutual Life Insurance Company, a corporation, for a certain annual premium, issued a policy insuring the life of William E. Sikes for $10,000.00. It was stipulated by the policy that the company would pay that sum to Sikes, his executors, administrators, and assigns, "within sixty days after due notice and proof of the death of said William E. Sikes, " provided, (among other things,) that the policy was to be void if said Sikes "shall enter into any military or naval service whatsoever (the militia not in actual service excepted). Sikes assigned this policy to John K. Jackson, by and with the consent of the company, as collateral security for a judgment for $16,000.00 and interest, which Jackson held against him.

The annual premiums had been paid up to the 11th April, 1865. Before that time, under and by force of the Conscription Act, and against his will, Sikes had been forced into the Confederate States' Army and of sickness not therein contracted had died.

The petition averred said facts, and "that of all and singular the premises the said company had notice and were bound to pay said insurance, according to the tenor and effect of saidpolicy."

*Pending the action, plaintiff died, and his said executors were made parties.

The said company, by its attorneys, demurred to said declaration.

The grounds of demurrer were—

1st. Because plaintiff does not aver that defendant ever had due notice, or that he had made due proof of the death of Sikes to the Company.

2d. Because Sikes' so being in the Confederate Army defeated the policy.

The Court sustained the demurrer on each ground, and ordered said case dismissed.

This action of the Court is assigned as error.

This case was argued December term, 1866, and held for consideration.

Starnes and Johnson, attorneys for plaintiff in error, cited the following: Bowring v. Elamslie, 7th T. R., 216, Note; Chitty on Con., 95; Evans v. Saunders, 8th Port., 497; Code, section 2721, par. 4; Paradine v. Jane Aleyn, R. 26-27; Dyer, 33; B. and A. Canal Co. v. Pritchard, 6th T. R., 750; Story on Bail, section 36; Mar. on Ins., 164-165; Bowdaile v. Hunter, 5th Man. and G., 639; Bristed v. Farmers' L. and I. Co., 4th Hill (N. Y.) R., 75; Burbank v. Rockingham In. Co., 4 Fost (N. H.) R., 550; Farmers' In. Co. v. Simmons, 30 Penn., 294; Sproul v. N. C. In. Co., Jones L. R., 126; Delaney v. Stod-dart, T. R., 22; Scott, et al., v. Thompson, 1 Bos. and Pul. 185; Miller and Robertson v. Russel, et al., 1 Bay., 305; Campbell v. Williamson, 2 Bay., 237; Baldwin v. N. Y. L. In. Co., 3 Bos-worth R., 530; People v. Bartlett, 3 Hill (N. Y.), 570;—to show that Sikes' being in the army did not defeat the policy.

Barnes and Cumming, for defendant, upon the first point cited 2 Phil, on In., 643, 644, 753; 12 Wendell R., 452.

And upon the second point cited Emerigon, 4, 13, 51; Angelon In., 235, 334, 354, 362; 1 Arnould on In. 2, 3, 348.

WALKER, J.*

The obligation in this case is to pay "within sixty days after due notice and proof of the death of said William E. Sikes." Notice and proof are conditions precedent to a recovery in this case. Such are the terms of the contract. There is no allegation in this declaration that any such notice and proof were given to defendant, and in the argument it was admitted, as we understood it, that none was given before process was sued out. When would the right of action...