Occidental Life Ins. Co. of Cal. v. Templeton, 39841

• Decision Date: 24 January 1963
• Docket Number: No. 39841,No. 2,39841,2
• Citation: 130 S.E.2d 168,107 Ga.App. 322
• Parties: OCCIDENTAL LIFE INSURANCE CO. OF CALIFORNIA v. Mrs. Lurline TEMPLETON
• Court: Georgia Court of Appeals

Page 168

130 S.E.2d 168

107 Ga.App. 322

OCCIDENTAL LIFE INSURANCE CO. OF CALIFORNIA v. Mrs. Lurline TEMPLETON.

No. 39841.

Court of Appeals of Georgia, Division No. 2.

Jan. 24, 1963.

Rehearing Denied Feb. 8, 1963.

Syllabus by the Court.

The plaintiff's petition alleged a cause of action and the evidence adduced on the trial of the case demanded a verdict for the plaintiff for the face amount of the policy; however, since the jury expressly found against the plaintiff on the question of the penalty authorized by Code Ann. § 56-1206 in actions on insurance policies, the award of attorneys fees was not authorized.

The plaintiff sued the defendant insurance company to recover the face value of an insurance policy written by the defendant. The defendant's oral motion to dismiss the petition, in the nature of a general demurrer, was overruled and the case proceeded to trial where a verdict for the plaintiff was rendered. Thereafter, the defendant's amended motion for new trial, as well as its motion for judgment non obstante veredicto based upon a prior motion for a directed verdict, were overruled, and error is now assigned on such judgments adverse to the insurer.

Fulcher, Fulcher, Hagler & Harper, J. Walker Harper, Augusta, for plaintiff in error.

Jeff D. Curry, Augusta, Randall Evans, Jr., Thomson, for defendant in error.

NICHOLS, Presiding Judge.

1. The plaintiff's petition alleged that the policy of insurance was issued on February 15, 1954, and that on December 3, 1954 the insured assigned the policy to the plaintiff. There was no allegation that the policy was in full force and effect or a direct allegation that the policy had been delivered to the insured. In support of its oral motion to dismiss the petition the defendant contends that in the absence of such allegations or in the absence of an allegation that the policy was in the possession of the plaintiff the petition was fatally defective.

The petition alleged that the policy was issued and some ten months later assigned by the insured to the plaintiff. While the word 'issued' may be subject to two or more interpretations when used with reference to an insurance policy and in the absence of any further allegation (construing the petition most strongly against the pleader), merely as an allegation that the policy was written and not delivered so as to convert the insured from an applicant into an insured, yet when the allegation that the policy was assigned to the plaintiff at a date after the date it was allegedly issued is considered it must be construed as alleging that the policy was 'issued' in the sense that the possession or right of possession was in the insured. See Words and Phrases, 'Issue.' While the petition is construed against the pleader yet it must be accepted as true. And once the policy was in force the pleader is not required to show that it had not been canceled for nonpayment of premiums, etc., for such is a condition subsequent and a matter of defense. See Turner v. Masonic Relief Ass'n, 52 Ga.App. 374(1), 183 S.E. 350; Masonic Relief Ass'n v. Hicks, 47 Ga.App. 499, 171 S.E. 215; Norman v. Sovereign Camp, Woodmen of the World, 61 Ga.App. 457(1), 6 S.E.2d 157. Nor will it be presumed that the policy contained a provision for forfeiture. See Lankford v. State Life Ins. Co., 57 Ga.App. 626, 635, 195 S.E. 907; National Life & Accident Ins. Co. v. Lockett, 65 Ga.App. 866, 16 S.E.2d 776. The trial court did not err in overruling the defendant's oral motion to dismiss the plaintiff's petition.

2. There was no contention, either in the defendant's pleadings or evidence, that all necessary premiums to keep the policy in effect had not been paid and the defendant admitted in its answer that the policy was issued, that the plaintiff was the assignee in such policy, that the face value of the policy was the amount alleged, that the plaintiff had made all necessary proofs of loss, etc., and that more than sixty days had expired since demand for payment, and for further answer alleged that the plaintiff and the insured had surrendered the policy before the death of the assured for its cash value and that the cash value was all that it owed the plaintiff. As a part of its answer the defendant pleaded the following excerpt from the policy:

'General Provisions.

'Payment of cash loans and surrender values--The company at its option may defer cash payment of any loan or surrender value for the period permitted by law, but not to exceed six months,...