Travelers Ins. Co v. Lancaster

• Decision Date: 14 June 1935
• Docket Number: Nos. 24416, 24448.,s. 24416, 24448.
• Citation: 51 Ga.App. 390,180 S.E. 641
• Parties: TRAVELERS INS. CO. v. LANCASTER. LANCASTER . v. TRAVELERS INS. CO.
• Court: Georgia Court of Appeals

51 Ga.App. 390

180 S.E. 641

TRAVELERS INS. CO.

v.LANCASTER.

LANCASTER .

v.TRAVELERS INS. CO.

Nos. 24416, 24448.

Court of Appeals of Georgia,

Division No. 2.

June 14, 1935.

Syllabus by Editorial Staff.

Error from Superior Court, Chattooga County; James Maddox, Judge.

Petition by De Forest Lancaster against the Travelers Insurance Company. To review a judgment overruling its general demurrer to the petition, defendant brings error, plaintiff filing a cross-bill of exceptions.

Affirmed on main bill of exceptions, and reversed on cross-bill of exceptions.

Finlay & Campbell, of Chattanooga, Tenn., and Maddox, Matthews & Owens, of Rome, for plaintiff in error.

John D. & E. S. Taylor, of Summerville, and Wright & Covington, of Rome, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, Presiding Judge.

This is a suit on a certificate of insurance issued to the plaintiff and subject to the provisions of a group policy issued to the plaintiff's employer for the benefit of the plaintiff and other employees. The policy, in addition to a death benefit, insured against total and permanent disability, providing that, in the event the employee should furnish to the defendant company proof while insured under the policy that he had become wholly disabled by bodily injury or disease and would permanently and continuously be prevented thereby for life from engaging in any occupation or employment for wage or profit, the company would pay, in full settlement of all obligations to him under the policy, the amount of insurance upon his life in force thereunder at the time of the receipt of due proof of such disability, calculated according to a schedule of different installment payments specified in the policy as might be chosen by the employer. The petition alleged that the plaintiff employee had become totally and permanently disabled while the policy was in force, and that upon demand for payment of the insurance, the plaintiff had received from the defendant the following letter, denying all liability: "Your claim for disability benefits under your group life insurance policy has been reviewed, and same has been disallowed for the reason there was no disability provisions in force at the time you became continuously totally disabled on June 9, 1933." Plaintiff further alleged that after such denial of liability he called upon the employer to designate the number of installments which it might choose under the options given by the policy, but that the employer failed to make any such choice, and that upon its failure so to do, plaintiff elected to sue for the full amount due under the contract in one installment. Defendant demurred to the petition on the grounds: (1) That it showed a failure to make proof of the disability as required by the terms of the policy; (2) that it failed to show that the employer had designated the number of installments as required by the terms of the policy; (3) that there was no privity of contract between the defendant and the plaintiff, such as would authorize the plaintiff to bring an action on the policy in his own name. The court overruled the general demurrer to the petition, but sustained a special demurrer, holding that the plaintiff could not recover the face amount of the policy in a lump sum as sued for; and, after the plaintiff had amended, by setting up an additional count under which he elected to claim an annual installment in accordance with the provisions of the policy, the court overruled the renewed demurrer to that count. The defendant excepts to the failure of the court to sustain its general demurrer to the first and second counts of the petition. The plaintiff, by cross-bill of exceptions, excepts to the sustaining of the special demurrer to the first count, which required him to...