Opinion
39776.
DECIDED OCTOBER 9, 1962.
Action on insurance policy. Washington Superior Court. Before Judge Humphrey.
Dukes McMillan, M. W. Dukes, Irwin L. Evans, for plaintiff in error.
Thomas A. Hutcheson, contra.
Where, in an action on an insurance policy the evidence shows that an event insured against occurred at a time when all premiums due were paid, a finding for the insured and against the insurer was demanded.
DECIDED OCTOBER 9, 1962.
Donald Hodges and Winnie Lee Ware sued the Key Life Insurance Company on a policy of insurance issued to Donald Hodges and covering his employees suffering occupational accidents. Winnie Lee Ware, the co-plaintiff, is alleged to be the sole heir and administratrix of Andrew Jackson Edwards, the deceased employee of Donald Hodges. The plaintiff's petition, as finally amended, was in two counts, the first count seeking to recover because the policy was in full force and all premiums were paid while the second count sought to recover because the defendant had accepted premiums late throughout the life of the policy and a course of dealings had been established whereby the defendant was bound to accept the payment due before the employee was killed but which was not tendered until after his death. The defendant demurred generally and specially to each count of the petition and after amendments had been filed and additional demurrers filed the trial court overruled all the defendant's demurrers. On the trial of the case the defendant's motion for nonsuit as to each count was overruled as well as its motion for a directed verdict. Thereafter, the plaintiffs' motion for a directed verdict was granted. Error is assigned on the judgments adverse to the defendant.
1. The only argument presented as to the ruling upon demurrers to the first count of the plaintiffs' petition is a statement that it insists that the trial court erred in overruling each of such demurrers. "This does not amount to an argument, and the assignment of error in so far as the ruling on the demurrer is concerned will be treated as abandoned. See Bell v. Bell, 210 Ga. 295 ( 79 S.E.2d 524)." Wood v. Pool, 211 Ga. 789 (3) ( 89 S.E.2d 192). Accordingly, as to such count of the petition, it is the established law of the case that if the plaintiffs proved their case as laid they are entitled to recover. See Cloud v. Stewart, 92 Ga. App. 247, 249 ( 88 S.E.2d 323); McKool v. Naddra, 100 Ga. App. 171 ( 110 S.E.2d 409).
2. The defendant offered no evidence on the trial of the case and, except for the issue of whether the premiums had been paid so that the policy was in force, makes no issue as to whether the allegations of the petition were supported by the plaintiffs' evidence. Therefore, the real question for decision as to the first count of the plaintiffs' petition is whether the evidence showed that the policy was in force at the time of the death of Andrew Jackson Edwards.
"(1) Where a contract is ambiguous or the construction doubtful, it is to be construed most strongly against the maker or drawer. Small Co. v. Claxton, 1 Ga. App. 83 ( 57 S.E. 977); Jenkins v. Morgan, 100 Ga. App. 561 ( 112 S.E.2d 23); (2) The provisions of a policy of insurance will be strictly construed against the insurer. Continental Life Ins. Co. v. Wells, 38 Ga. App. 99 ( 142 S.E. 900); Penn Mutual Life Ins. Co. v. Milton, 160 Ga. 168 ( 127 S.E. 140, 40 ALR 1382); Johnson v. U.S. Fidelity c. Co., 93 Ga. App. 336 ( 91 S.E.2d 779); and (3) Where a policy of insurance is reasonably susceptible of more than one construction, the interpretation most favorable to the insured will be given effect, resolving all ambiguities against the insurer. Aetna Life Ins. Co. v. Padgett, 49 Ga. App. 666 ( 176 S.E. 702); Gill v. Federal Life c. Co., 86 Ga. App. 455 ( 71 S.E.2d 683)." Macon Auto Auction v. Georgia Cas. c. Co., 104 Ga. App. 245, 249 ( 121 S.E.2d 400).
The policy called for a premium of 2.8 percent of the employer's total payroll plus a fixed amount ($5.00 every four weeks), for coverage of the employer on a twenty-four hour basis, and while the insurer billed the employer for a fixed amount each premium paying period the amount due was not based on such amount but was based on the percentage figure. The policy provided that it would lapse for nonpayment of premiums and at the same time provided: "The required premium is based on a percentage of the total payroll of the employer and therefore the deposit in advance is based on an estimated payroll. On each policy anniversary the actual payroll of the employer shall be compared to the estimated payroll and thereby a determination of the actual premiums paid and the premiums required hereon for the preceding policy year, and a settlement thereon between the employer and the company shall be made at said time. The anniversaries of this policy shall be construed to be the 5th day of October in each year."
The evidence showed without dispute that the employer had paid the estimated premiums each premium paying period since the policy was issued with two exceptions. Once the employer made an overpayment by paying one premium twice, and once, at a time when the employer closed down his business no payments were made. After the initial deposit, with three exceptions when the payments were made on regular checks, all payments were made on check or draft forms furnished by the insurer and which showed the due date of the estimated premiums as well as the actual date on which it was paid. When the extra payment was made it was a duplicate payment and the form showed the same "due date" as the regular payment. On subsequent forms used to make the estimated premium payments no credit was given for the extra payment and at the time of Edwards' death no credit had been given for such payment. While the evidence showed that the employer stopped making payments at one time his undisputed testimony that during such time he had shut down his business and had no employees demanded a finding that no premiums were due during such period, and that at the time of the employee's death the insurer owed the employer credit for the extra payment and, when such credit is given, the verdict directed by the trial court as to count 1 of the plaintiffs' petition was demanded by the evidence. The trial court did not err in overruling the defendant's motion for nonsuit and in granting the plaintiffs' motion for a directed verdict as to count 1 of the petition. The verdict for the plaintiffs on the first count of the petition being demanded, the assignments of error as to the second count are moot and will not be passed upon.
Judgment affirmed. Frankum and Jordan, JJ., concur.