Occidental Life Insurance Company of California v. Templeton, Executrix., 107 Ga. App. 322, 130 S.E.2d 168 (1963)
Linked as:
Text
Jeff D. Curry, Randall Evans, Jr., contra.Fulcher, Fulcher, Hagler & Harper, J. Walker Harper, for plaintiff in error.
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, was overruled, and error is now assigned on such judgments adverse to the insurer.
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 Assn.,
3. Special grounds 4, 5, 6, 7 and 8 which deal with the exclusion of evidence, which if admitted would not have authorized a verdict for the defendant, show no harmful error, nor do grounds 9, 10, 11, 12, 13 or 15 which deal with the court's charge show any harmful error, and special ground 14 has been expressly abandoned. The rulings which occurred prior to the trial, and on which error is assigned in the bill of exceptions, would not, if rendered as contended for by the defendant, have authorized a verdict for the defendant, and show no harmful error.
4. The last remaining ground of the motion for new trial complains of the verdict awarding attorney's fees. The verdict which expressly stated that no penalty was found against the defendant nullified the award of attorney's fees. See Union Central Life Ins. Co. v. Cofer,
Judgment affirmed on condition. Frankum and Jordan, JJ., concur.
1963
Sponsored links
