Opinion
39232.
DECIDED FEBRUARY 23, 1962.
Action on account. Fulton Civil Court. Before Judge Wright.
Wilson, Branch Barwick, Thomas S. Bentley, for plaintiff in error.
Lewis R. Slaton, Jr., Edward H. Robertson, contra.
A petition which alleges that the defendant is indebted to the plaintiff in a stated amount for premiums on insurance policies, showing the number of each policy, the effective dates of coverage and the premium due on each, states a cause of action on open account.
DECIDED FEBRUARY 23, 1962.
The plaintiff (plaintiff in error) sued the defendant (defendant in error) for insurance premiums on policies that were allegedly issued by plaintiff and in effect for about 12 weeks. The petition alleged: The plaintiff at defendant's request agreed to insure certain of the defendant's risks and bound the coverage on said risks effective March 2, 1960, until the requested policy could be issued. Plaintiff issued the policies on or about March 24. On May 25 defendant's agent, acting within the scope and course of his agency, requested plaintiff to cancel the policies effective that date. Plaintiff complied with the request. An exhibit attached to the petition shows that for the period March 2 to May 25 the policies earned premiums totaling $6,307.25, the three policies being listed by number, with effective dates of coverage from March 2 to May 25, and amount of premium earned. The defendant refused to pay the premiums as requested and owes the same, together with 7% interest from July 30, 1960.
The defendant filed general and special demurrers. The trial court sustained the general demurrer allowing the plaintiff leave to amend and declined to pass on the special demurrers.
Plaintiff by amendment alleged: On or about March 1 in a conference between defendant's agent and plaintiff, plaintiff offered to insure certain of defendant's risks with certain terms as to premiums. The defendant accepted and confirmed the conditions of the agreement. The plaintiff then bound coverage effective March 2 "until further information and experience data could be accumulated, whereupon the policies requested would be issued." During the effective dates of the policies the plaintiff paid claims under the policies.
The defendant renewed its demurrers and filed further special demurrers to the allegations of plaintiff's amendment. The court sustained the renewed general demurrer and dismissed the petition. The plaintiff assigns error on this judgment.
The petition alleges that the defendant is indebted to the plaintiff in a stated amount for premiums on insurance policies, showing the number of each policy, the effective dates and the premium due on each. It fully apprizes the defendant of the character of the plaintiff's demand, so as to enable him to prepare his defense. It does not affirmatively disclose a want of defendant's liability, nor contain any defect that can be successfully attacked by general demurrer. It therefore is sufficient to state a cause of action on open account. Henry Darling, Inc. v. Harvey-Given Co., 40 Ga. App. 771 ( 151 S.E. 518); Holcombe v. Parker, 98 Ga. App. 17 ( 104 S.E.2d 595); Southern Wire Iron, Inc. v. American Cas. Co., 103 Ga. App. 267 ( 118 S.E.2d 859).
The cases of Jones v. Gilbert, 93 Ga. 604 ( 20 S.E. 48); Niagara Fire Ins. Co. v. Williams, 1 Ga. App. 603 ( 57 S.E. 1018); and Associated Mutuals, Inc. v. Pope Lumber Co., 200 Ga. 487 ( 37 S.E.2d 393), relied on by the defendant, deal with the effect of evidence introduced on the trial, in support or in defense, of actions involving insurance contracts and premiums, and those decisions do not affect the present question.
The trial court erred in sustaining the renewed demurrer and in dismissing the petition.
Judgment reversed. Felton, C. J., and Bell, J., concur.