Life & Cas. Ins. Co. of Tenn. v. Webb

• Decision Date: 08 September 1965
• Docket Number: No. 2,No. 41279,41279,2
• Citation: 145 S.E.2d 63,112 Ga.App. 344
• Court: Georgia Court of Appeals
• Parties: LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE v. Roy WEBB, Administrator, et al

Page 63

145 S.E.2d 63

112 Ga.App. 344

LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE v. Roy WEBB, Administrator, et al.

No. 41279.

Court of Appeals of Georgia, Division No. 2.

Sept. 8, 1965.

Rehearing Denied Sept. 23, 1965.

Syllabus by the Court

1. Section 2 of the Act of 1952 approved February 15, 1952, (Ga.L.1952, pp. 288, 289) provides: 'That the right to receive or take any benefits from any insurance contract or policy issued on the life of a person is hereby denied to any person who shall hereafter with malice aforethought kill any person for the purpose of receiving any benefits under any insurance contract or policy issued on the life of the deceased; or conspire with another to kill or procure another to kill such an insured person, even though such person so killing or procuring or conspiring, be named beneficiary in such an insurance contract or policy; and all right, interest and estate in such an insurance contract or policy, and all the proceeds shall go to such heirs of the deceased as may be entitled thereto by the laws of descent and distribution of this State, unless secondary beneficiaries be named in said policy, in which event such secondary beneficiaries shall take.' (Emphasis by the court). This section, by its terms, does not affect the payment of the proceeds of a policy where the beneficiary named therein with malice aforethought kills the insured, unless the killing is done for the purpose of receiving benefits under such insurance contract on the life of the deceased. (See, in this connection, Ward v. Ward, 174 Va. 331, 6 S.E.2d 664; Re Wolf, 88 Misc. 433, 150 N.Y.S. 738). It follows, therefore, that where, as in the present case, an action is brought by the heirs of the deceased insured against the insurance carrier under the above section and the petition fails to allege that the killing was done for the purpose of receiving benefits under the insurance contract, the petition fails to set forth a cause of action and the trial court erred in overruling the general demurrer to the petition. Whether the petition is for any other reason defective as against a general demurrer, we do not decide.

2. Section 24 of Ch. 56-24 of the new Insurance Code enacted by the Act approved March 8, 1960 (Ga.L.1960, pp. 289, 669), which provides that payments made by the insurer under a life insurance policy, 'heretofore or hereafter' issued, in accordance with the terms of the policy 'shall fully discharge the insurer from all claims under the policy or contract unless, before payment is made, the insurer has received at its home office written notice by or on behalf of some other person that such other person claims to be entitled to such payment or some interest in the policy or contract' is not retroactive as to payments made prior to the effective date of said Act, to wit, January 1, 1961. The case of Bowers v. Keller, 185 Ga. 435, 195 S.E. 447 is not applicable here, for in that case the statute was clearly retroactive in its operation as to the validity of any contracts involved.

3. An action by the heirs of a deceased person against the spouse of the deceased, after payment to such spouse of the proceeds of a life insurance policy on the life of the deceased, alleging that the spouse, with malice aforethought, killed the deceased and seeking an adjudication that such heirs are entitled to the entire estate of the deceased under § 1 of the Act approved February 15, 1952 (Ga.L.1952, pp. 288, 289; Code Ann. § 113-909) denying the right of inheritance to the person killing, requires not only proof that the spouse, with malice aforethought, killed the deceased but the further proof that the killing was done 'for the purpose of inheriting the property of the person so killed,' and a judgment rendered therein in favor of the defendant spouse is not res judicata as to a suit brought by the heirs against the insurance company upon the policy of insurance in which the spouse is named beneficiary (to which suit the spouse is vouchee) under the provisions of § 2 of said Act of 1952 (old Code Ann. § 56-928, which section was repealed by the Act of 1960, supra, and a new section enacted in lieu thereof being designated by said Act as § 06 of Ch. 56-25; Code Ann. § 56-2506), which provides that the rights to receive or take any benefits under any insurance contract or policy is 'denied to any person who shall hereafter with malice aforethought kill any person for the purpose of receiving any benefits under any insurance contract or policy issued on the life of the deceased; and, where it does not appear from the plea of res judicata that the consent judgment in the prior action was necessarily based upon a decision or agreement that the spouse did not kill the deceased, and it appearing that the other issues involved in the two actions are not the same, such plea was not sustainable as one of estoppel by judgment.

Hammond Johnson, Jr., Gainesville, for plaintiff in error.

Herbert Edmondson, Gainesville, for defendants in error.

PANNELL, Judge.

Roy R. Webb, Theoda Standridge, Edna Bryant, Hester Hendrix, Ernest E. Webb and J. B. Webb brought an action against Ernest Lee MeDaniel, alleging that they were the brothers and sister of Mrs. Lula Bell Webb McDaniel, deceased; that on Septembert 24, 1959, said McDaniel did, with malice aforethought, kill his wife, the said Lula Bell Webb McDaniel, and that, under the law, he was not entitled to inherit any of her property and prayed, 'that title to all of the property belonging to Mrs. Lula Bell Webb McDaniel at the time of her death be decreed to be in' the plaintiff. A settlement agreement was entered into between the parties whereby monies on deposit in a bank and certain real estate and personal property of the deceased was divided between the parties, one-fourth to the husband, and three-fourths to the alleged heirs. At the time this suit was brought, the proceeds of an insurance policy issued by the defendant in the present case had been paid to the husband. The present case now before this court was brought originally by the administrator of the estate of Lula Bell Webb McDaniel, the husband was vouched into court by the defendant insurance company and the heirs at law of Lula Bell Webb McDaniel, who filed the previous action, were made parties plaintiff by amendment. The general demurrer of the defendant to the petition as amended was overruled and the demurrers of the plaintiff were sustained to a plea of res judicata filed by the defendant claiming that the previous case was res judicata as to the relief sought in the present one. Only headnote 3 requires any elaboration.

'A former recovery, or the pendency of a former suit for the same cause of action, between the same parties, in the same or any other court that has jurisdiction, shall be a good cause of abatement; but if the first action is so defective that no recovery can possibly be had, the pendency of a former suit shall not abate the action.' Code § 3-607. 'A judgment of a court of competent jurisdiction shall be conclusive between the...