Opinion
33260.
DECIDED NOVEMBER 16, 1950.
Complaint on accident policy; from Bartow Superior Court — Judge Paschall. July 10, 1950.
J. L. Davis, for plaintiff in error.
Leon Dean Covington, contra.
The demurrer did not reach the alleged defect in the petition and the court erred in sustaining the demurrer and in dismissing the action.
DECIDED NOVEMBER 16, 1950.
Horace Monday sued Life Casualty Insurance Company of Tennessee for proceeds allegedly due the plaintiff by the defendant for loss of a hand under the terms of an accident insurance policy. The following quoted provisions of the policy are the only provisions of the policy referred to by the plaintiff in the petition: "The Life and Casualty Insurance Company of Tennessee hereby insures the person named in said schedule against loss of life from injury or disease, subject to all the provisions and limitations hereinafter set out." "Schedule. Name of Insured, Horace Monday. Principal sum first policy year, $1000. Benefit for loss of sight or limb — If the insured has suffered any of the losses set forth below solely as a direct and proximate result of diseases contracted after or injuries sustained after the effective date of this policy, the company upon surrender of this policy will pay the sum set opposite such loss as follows: Loss of one hand ____ One-half the principal sum. The loss of hand or foot means loss of such limbs by complete severance or the complete and permanent loss of the use thereof because of paralysis of such limbs." Defendant demurred generally, and specially "because a copy of what appears upon the face or in the body of the policy sued on is not attached to said petition or incorporated therein." The demurrer was sustained and the action dismissed and plaintiff excepts.
In an action on an insurance policy it is necessary to allege only that which appears on the face of or in the body of the policy preceding the signature of the officers by whom the policy is executed. Southern Mutual Ins. Co. v. Turnley, 100 Ga. 296 ( 27 S.E. 975); Life Casualty Ins. Co. of Tenn. v. Burkett, 38 Ga. App. 329 ( 144 S.E. 29). Omission of such allegation is taken advantage of by special demurrer. Gonackey v. General Accident, Fire c. Assur. Corp., 6 Ga. App. 381 ( 65 S.E. 53). A demurrer, being a critic, must itself be free from fault. A special demurrer must itself clearly point out the special information desired or necessary. Katz v. Turner, 49 Ga. App. 81 ( 174 S.E. 167). A demurrer reaches only a defect appearing on the face of a petition. A demurrer to the petition "because a copy of what appears upon the face or in the body of the policy sued on is not attached to said petition or incorporated therein" does not reach the alleged defect in the petition because it does not appear on the face of the petition whether it set out the material provisions of the policy referred to in Code § 81-105. A demurrer based on that ground should point out that the petition did not allege that it contained that which appeared on the face of or in the body of the policy preceding the signatures of the officers who executed the policy.
The petition as a whole stated a good cause of action as against a general demurrer.
The court erred in sustaining the demurrer and in dismissing the action.
Judgment reversed. Sutton, C.J., and Worrill, J., concur.