Kersh v. Life & Cas. Ins. Co. of Tenn.
| Decision Date | 02 June 1964 |
| Docket Number | No. 40724,No. 2,40724,2 |
| Citation | 109 Ga.App. 793,137 S.E.2d 493 |
| Court | Georgia Court of Appeals |
| Parties | Lynn KERSH v. LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE |
Syllabus by the Court
1. The burden is on the litigant contending that the law of a foreign State controls over the law of Georgia to allege and prove both that such law is applicable and of what it is comprised. The response to the motion for summary judgment, which did not itself plead the law that movant now contends is controlling, also failed to set out wherein the law of South Carolina differs from the law of Georgia. The case must therefore be decided under applicable provisions of the common law as interpreted by the appellate courts of this State.
2. Unless expressly accepted as payment by agreement between the parties, a check given for an insurance premium is not payment until itself paid. Where the check tendered to the insurer on the last day of the grace period was dishonored because of insufficient funds the policy lapsed prior to the death of the insured.
Mrs. Kersh brought suit seeking to recover $2,500 as the death benefits under a policy of insurance issued by the defendant in error, and also for the statutory penalty and $2,000 attorneys fees for alleged bad faith in refusing to pay the proceeds of the policy.
The plaintiff alleges that at the time of death of the insured, which occurred on June 9, 1963, the policy was in force and effect. The insurance company denies that the policy was in force and effect by reason of the fact that the policy had lapsed prior to death of the insured because of the failure to pay the monthly premiums.
The policy of insurance was purchased on December 21, 1961, and the contract provided for the payment of a monthly premium in the amount of $11.25 on the 21st of each month. On April 21, 1963, the monthly premium was not paid, but on May 21, 1963, being the last date of grace period provided for by the terms of the policy, the insured gave an agent of the company a check for $10 and $1.25 in cash. The agent gave to the insured a printed receipt. The receipt on the reverse side of the signatures set forth the following language: 'It is understood and agreed that a return check or past due note or obligation of any kind is not payment, and that any obligation given in exchange for this receipt, when dishonored or not paid at maturity shall render this receipt and said policy absolutely void, except as provided by its terms.'
The check was dated May 20, 1963, was delivered to the agent on May 21, 1963, was presented to the bank for payment on May 22, 1963, and was returned by the bank on May 24, 1963, for insufficient funds. It is uncontradicted that on each of the above dates the account of the insured was overdrawn.
When the check was returned the agent attempted to contact the insured at two different locations in Charleston, S. C., in order to get the insured to pay $10 in cash in lieu of the dishonored check. The agent ascertained that the insured had left Charleston without leaving any address. The company retained the returned check and also the $1.25 in cash. The company states that they could not refund the $1.25 in cash because the whereabouts of the insured was unknown. The insured was killed by a train on June 9, 1963, in Cobb County, Georgia. No legal representative of his estate was ever appointed.
Thereafter, appropriate notice and demands were given the company and it refused to pay the claims. When sued the company tendered the $1.25 cash into court. A motion for summary judgment was made by both parties and a general demurrer was filed by the plaintiff to the defendant's motion. Following the sustaining and the granting of the motion for the insurance company, the plaintiff assigns as error the overruling of her general demurrer to the defendant's motion for summary judgment and the sustaining of the defendant's motion for summary judgment.
Paul C. Myers and William I. Aynes, Atlanta, for plaintiff in error.
Edenfield, Heyman & Sizemore, William F. Buchanan and William H. Major, Atlanta, for defendant in error.
1. The presumption is, where the law of another of the 13 original States is not pleaded and proved, that it is the common law as interpreted by this State. Trustees of Jesse Parker Williams Hospital v. Nisbet, 189 Ga. 807, 811, 17...
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