Masonic Relief Ass'n v. Hicks

• Decision Date: 13 September 1933
• Docket Number: 22745.
• Citation: 171 S.E. 215,47 Ga.App. 499
• Parties: MASONIC RELIEF ASS'N v. HICKS.
• Court: Georgia Court of Appeals

171 S.E. 215

47 Ga.App. 499

MASONIC RELIEF ASS'N v. HICKS.

No. 22745.

Court of Appeals of Georgia, Second Division

September 13, 1933

Syllabus by Editorial Staff.

Payment of premiums, dues, or assessments is not condition precedent to continuance of benefit certificate, but provision therein for lapsing certificate upon default in payment is condition subsequent.

Plaintiff's case on benefit certificate can be established prima facie without proof of payment of required premiums or dues, and when established, insurer has burden to show nonpayment.

Charge that plaintiff having attached copy of benefit certificate sued on to petition and having introduced policy in evidence insurer would have burden to show nonpayment of premiums, held not error.

In suit on benefit certificate, where court charged that insurer had burden to show nonpayment of required premiums, charge that party carrying burden of establishing fact should do so "to a reasonable and moral certainty" held prejudicial; mere preponderance being sufficient (Civ. Code 1910, §§ 5730, 5731).

Error from City Court of Oglethorpe; Jere M. Moore, Judge pro hac vice.

Suit by J. R. Hicks, Jr., against the Masonic Relief Association, etc. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Reversed.

Felton & Felton, of Montezuma, for plaintiff in error.

Gilbert C. Robinson, of Montezuma, for defendant in error.

Syllabus OPINION.

STEPHENS Judge.

1. A contract of life insurance, including a certificate for life insurance in a fraternal benefit association, although it may provide for the lapse or voidance of the contract upon the nonpayment of the periodic premiums, dues, or assessments provided for, is not a contract expiring at the end of each period for which the premiums, dues, or assessments have been paid, and renewable only by further periodic payments as provided for, but it is a contract for life made in consideration of the periodic payment of the premiums, dues or assessments. The payment of the premiums, dues, or assessments is not a condition precedent to the continuance of the policy or certificate for the life of the insured, but the condition that the policy or certificate becomes lapsed or void for nonpayment of the required payments is a condition subsequent by which the policy becomes lapsed or void upon the condition of the nonpayment of the premiums, dues, or assessments as required by the terms of the contract. New York Life Ins. Co. v. Statham, 93 U.S. 24, 23 L.Ed. 789; Globe Mutual Life Ins. Ass'n v. March, 118 Ill.App. 261, 266; Alabama Gold Life Ins. Co. v. Garmany, 74 Ga. 51 (2); Glover v. Bankers' Health & Life Ins. Co., 30 Ga.App. 308 (1), 117 S.E. 665. Whatever burden of proof, if any, rests upon the plaintiff, in a suit to recover as the beneficiary under a life insurance contract, to show that all premiums required to render the insured in good standing and the policy in force at the time of his death (see Supreme Lodge K. P. v. Crenshaw, 129 Ga. 195, 58 S.E. 628, 13 L.R.A. (N. S.) 258, 121 Am.St.Rep. 216, 12 Ann.Cas. 307; Boyd v. Southern States Life Ins. Co., 20 Ga.App. 453, 93 S.E. 42; Volunteer State Life Ins. Co. v. McGinnis, 29 Ga.App. 370, 115 S.E. 287; 33 C.J. p. 105; 14 Standard Enc. Proc. p. 43), the plaintiff's right to recover is established prima facie, without proof of payment of the required premiums, on proof of possession of the policy by the plaintiff and its introduction in evidence, and proof of all other essentials to a recovery under the policy. The burden is then upon the defendant, in order to defeat recovery, to adduce evidence tending to establish the invalidity of the contract of insurance by reason of nonpayment of the premiums, dues, or assessments necessary to render the insured in good standing and the policy in force at the time of his death. This rule is equally applicable to policies or certificates of insurance in fraternal benefit associations. 33 C.J. 109; Petherick v. General Assembly of Order of Amaranth, 114 Mich. 420, 72 N.W. 262; Rousseau v. Brotherhood of American Yeomen, 186 Mich. 101, 152 N.W. 939; Globe Mutual Life Ins. Ass'n v. March, 118 Ill.App. 261; Harris v. Security Life Ins. Co., 248 Mo. 304, 154 S.W. 68, Ann.Cas. 1914C, page 648; Rasch v. Bankers' Life Ins. Co. (Mo. App.) 201 S.W. 919; Bange v. Supreme Council Legion of Honor, 179 Mo.App. 21, 161 S.W. 652; Gooden v. Modern Woodmen of America, 194 Mo.App. 666, 189 S.W. 394. For a distinction between the burden of proof and the burden of introducing evidence in...