Joiner v. Metropolitan Life Ins. Co.

• Citation: 151 S.E. 540,40 Ga.App. 740
• Decision Date: 23 January 1930
• Docket Number: 19641.
• Parties: JOINER v. METROPOLITAN LIFE INS. CO.
• Court: Georgia Court of Appeals

151 S.E. 540

40 Ga.App. 740

JOINER v. METROPOLITAN LIFE INS. CO.

No. 19641.

Court of Appeals of Georgia, Second Division

January 23, 1930

Error from City Court of Macon; C. H. Hall, Judge.

Action by E. W. Joiner against the Metropolitan Life Insurance Company. Judgment for defendant, and plaintiff brings error. Reversed.

Martin Martin & Snow, of Macon, for plaintiff in error.

Jones Jones, Johnston & Russell, of Macon, for defendant in error.

JENKINS P.J.

Liability under the policy of group insurance sued on was conditioned and dependent on the decedent remaining in the service of his employer, the railway company, up to the time of his death. The court granted a nonsuit, on the theory that the employment had been previously terminated, and the only question for determination in this case is as to whether or not there was an issue of fact upon that question.

Whatever might be the rule as to the burden of proof upon this question (see, in this connection, Duval v. Metropolitan Life Ins. Co., 82 N.H. 543, 136 A. 400, 50 A.L.R. 1276; Travelers' Ins. Co. v. Fox, 155 Md. 210, 141 A 547), upon it being shown that the employer had, according to the provisions of the policy, collected from the deceased the premium for the month during which the decease died a prima facie case was established, and it devolved upon the insurance company to show that the employment had been terminated prior to the death of the insured. In view of the fact that, under the terms of the policy, a leave of absence not exceeding two months would not invalidate the insurance and that at the time the decedent was last paid off and his actual labor for the railway company suspended, the premium for the full current month, extending over and beyond the date on which the insured met his death, was deducted from his wages and remitted to the company, and that at such time a return trip pass was issued by the railway company to the decedent as its employee, which likewise remained of force over and beyond the date on which the insured met his death, and in the absence of any direct testimony upon the question as to whether or not the relation of employer and employee had actually been terminated prior to the time of the insured's death, it was error for the court to grant a nonsuit on the theory that no issue was involved upon the question of the continuance of such employment. The fact that the petition as originally filed might...