N.Y. Life Ins. Co v. Hartford Accident & Indem. Co

• Court: Georgia Supreme Court
• Writing for the Court: ATKINSON, Justice
• Citation: N.Y. Life Ins. Co v. Hartford Accident & Indem. Co, 181 S.E. 755, 181 Ga. 55 (Ga. 1935)
• Decision Date: 11 September 1935
• Docket Number: Nos. 10643, 10644.,s. 10643, 10644.
• Parties: NEW YORK LIFE INS. CO. v. HARTFORD ACCIDENT & INDEMNITY CO. et al. KIDDY. v. SAME.

181 Ga. 55

181 S.E. 755

NEW YORK LIFE INS. CO.

v.HARTFORD ACCIDENT & INDEMNITY CO. et al.

KIDDY.

v.SAME.

Nos. 10643, 10644.

Supreme Court of Georgia.

Sept. 11, 1935.

Syllabus by Editorial Staff.

Error from Superior Court, Chatham County; John Rourke, Jr., Judger

Equitable action by the New York Life Insurance Company against the Hartford Accident & Indemnity Company and others, wherein defendants were interpleaded. To review the judgment, after their separate motions for new trials were overruled, defendant Barbara A. Kiddy and plaintiff separately bring error.

Affirmed as to defendant Barbara A. Kiddy, and reversed as to plaintiff.

On October 23, 1929, the New York Life Insurance Company issued to Haddy J. Kiddy a policy insuring his life for the amount of $2,500, payable to his mother, Barbara A. Kiddy, "with right on the part of the insured to change the beneficiary." Attached to the policy as a part thereof was an application for the insurance, signed by the insured, which showed certain representations by answers to questions propounded to the applicant. Subsequently a paper dated May 24, 1930, was executed, purporting to assign the policy "for value received" to Percy H. Whetstone, and purporting to be executed by both the insured and the designated beneficiary. The paper was in the usual form, and contained the recital: "This is an absolute assignment." On October 30, 1930, the insurer elected to rescind the contract of insurance, "on the ground that it was obtained by misrepresentation of material facts." The insured died on November 15, 1930. On March 24, 1931, Percy H. Whetstone executed an assignment of all his rights under the policy to Hartford Accident & Indemnity Company to secure a debt for $1,078.96, and stipulated that any balance after paying the debt should be paid to the assignor. On April 14, 1931, Whetstone instituted suit on the policy against the insurer, in the city court of Savannah. On October 22, 1931, the New York Life Insurance Company instituted an equitable action against Hartford Accident & Indemnity Company, Barbara A. Kiddy, Percy H. Whetstone, and his attorneys of record, praying for cancellation of the policy, for injunction to prevent its transfer or removal, to prevent prosecution of the suit in the city court, and to prevent the bringing of other suits on the policy, and requiring all the defendants to interplead in the action. It was alleged that Barbara A. Kiddy denied having made an assignment to Whetstone. There was no demurrer complaining of failure to make the estate of Haddy J. Kiddy a party to the action. The several defendants filed separate answers. At the conclusion of evidence offered by both sides the judge directed a verdict against Barbara A. Kiddy. As to the other defendants, the jury returned a special verdict answering questions propounded by the court, which had been submitted separately by the plaintiff and the defendants. The court thereupon rendered a decree. Barbara A. Kiddy filed a motion for a new trial, which was overruled, and she excepted, assigning error on the direction of the verdict and also on the final decree. The plaintiff made a separate motion for a new trial, which was overruled, and the movant excepted, assigning error on the judgment, and also on the final decree.

Bryan, Middlebrooks & Carter, of Atlanta, and F. P. McIntire, of Savannah, for plaintiff in error New York Life Ins. Co.

Albert L. Cobb and Chas. D. Russell, both of Savannah, for plaintiff in error Kiddy.

O. E. Bright, Perry Brannen, Travis & Travis, Geo. W. Fetzer, Jr., Albert L. Cobb, Chas. D. Russell, and F. P. Mclntire, all of Savannah, and Bryan, Middlebrooks & Carter, of Atlanta, for defendants in error.

Syllabus Opinion by the Court.

ATKINSON, Justice.

1. "In order to relieve the plaintiff in error from the payment of costs in this court, it is necessary that a proper pauper affidavit shall be filed with the clerk of the trial court before the bill of exceptions and transcript of the record are transmitted to this court." Smith v. State, 117 Ga. 16, 43 S. E. 440, and cit.; Oliver v. State, 160 Ga. 365, 127 S. E. 732. The pauper affidavit in the case of Kiddy v. Hartford Accident & Indemnity Co. not having been filed in the trial court prior to transmission of the transcript of the record to the Supreme Court, the plaintiff in error in that case is not relieved from the payment of costs.

2. "In a civil case the defendants are not entitled to a separate trial, nor is each entitled to strike the full number of jurors, but all of the defendants must join in striking the jury." Pool v. Gramling, ...