Wright v. Fuller

• Decision Date: 11 July 1918
• Docket Number: (No. 682.)
• Citation: 96 S.E. 433,148 Ga. 223
• Parties: WRIGHT, Ins. Com'r. v. FULLER.
• Court: Georgia Supreme Court

148 Ga. 223

96 S.E. 433

WRIGHT, Ins. Com'r.

v.FULLER.

(No. 682.)

Supreme Court of Georgia.

July 11, 1918.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

In the matter of the American Annuity Association, in liquidation. S. H. Fuller, administrator of the estate of Mary E. Fuller, deceased, filed an intervention against W. A. Wright, Insurance Commissioner.

From a judgment for Intervener, the Insurance Commissioner brings error. Affirmed.

On August 28, 1911, the American Life Annuity Association issued a policy upon the life of Mary E. Fuller for the sum of $5,000. Lula J. Fuller, the beneficiary therein named, was the daughter of the insured. The policy contained the following material provisions:

(1) In the event of the death of the insured, the company would pay to the beneficiary the sum of $5,000 in 100 monthly installments, of $50 each.

(2) "Should the member to whom this policy is issued attain the age of 78 years while this contract is in full force and effect, he may receive the above-mentioned annuity under the same plan as provided for his beneficiary in the event of death: Provided, however, that should said member die before the sum of $5,000 shall have been paid, his said beneficiary shall in like manner receive the unpaid installments."

(3) "In the event said member should become totally and permanently disabled while this policy is in full force and effect, his premiums shall cease during such disability, and he may receive the said annuity in monthly payments of $25 each: Provided, that should he recover from such disability, the said payments to him shall cease, and the amount paid to him shall be charged against his policy as a loan. * * * This contract is issued in consideration of the payment of the first annual premium of three hundred and eight and no/100 dollars, and the further payment of a like amount on the 21st day of August each year until the assured shall attain the age of 78."

On July 14, 1913, the insurance company was placed in the hands of William A. Wright, insurance commissioner of Georgia, for liquidation. The order of liquidation was passed on September 28, 1913. On February 12, 1912, the insured was stricken with paralysis. This stroke of paralysis totally and permanently disabled the insured, and she was thereafter confined to her bed in a comatose condition. On January 8, 1915, the insured died. The premiums on the policy were paid at maturity from the date of the issuance of the policy until the death of the insured. The beneficiary in the policy intervened in the insolvency case, and claimed that she was entitled to receive the value of the policy as a death claim. Her contention was rejected by the trial court and by the Supreme Court; this court holding that inasmuch as the insured was living at the date of the order of liquidation the policy in question was "ipso facto canceled, and a claim of loss thereafter occurring is not a provable claim by the beneficiary against the company." Fuller v. Wright, 147 Ga. 70, 92 S. E. 873, L. R. A. 1917E, 1139.

Following the decision by this court, the defendant in error was appointed administrator of the estate of Mary E. Fuller, the insured, and filed an intervention, claiming the full amount of the policy reduced to its cash value as of the date of the order of liquidation, upon the theory that the policy became matured in the right of the insured for its full value upon the date upon which the insured became totally and permanently disabled. The insurance commissioner resisted the payment of the claim, upon the ground that the policy was canceled by the order of liquidation, and that the intervener had no claim, except for seven installments, of $25 each, which had accrued up to the date of the order of liquidation, and, if not correct in that contention, that the intervener could have no claim for more than 23 installments, of $25 each, which had accrued before the death of the insured. The court, to whom the issues were submitted, rendered judgment in favor of the intervener in the principal sum of $2,958.75, the full amount of the policy reduced to its present cash value as of the date of the order of liquidation. The insurance commissioner excepted.

Walter McElreath, of Atlanta, for plaintiff in error.

J. L. Anderson, of Atlanta, for defendant In error.

GEORGE, J. When the suit of the beneficiary in the insurance policy involved in this case was before this court (Fuller v. Wright, 147 Ga. 70, 92 S. E. 873, L. R. A. 1917E, 1139), it was ruled:

"Upon the adjudication of insolvency of a domestic stock life insurance company and the passing of an order of liquidation of its affairs on a petition filed by the insurance commissioner, the outstanding policies are ipso facto canceled, and a claim of loss thereafter occurring is not a provable claim by the beneficiary...