Opinion
32881.
DECIDED APRIL 28, 1950.
Action on life policy; from Fulton Civil Court — Judge Carpenter. December 2, 1949.
William F. Buchanan, Mary J. Nelson, for plaintiff in error.
Frank A. Bowers, contra.
1. A petition purporting to set forth a cause of action against an insurance company on a contract of insurance insuring against loss of life and against certain other specified injuries or losses, but which does not allege that the company accepted the risk and assented to the terms of the contract ( Maddox v. Life Casualty Ins. Co., 79 Ga. App. 164, 170, 53 S.E.2d 235), or that the agent taking the application and accepting the advance payment of premiums had authority to bind the company ( Home Insurance Co. v. Fain, 46 Ga. App. 632, 167 S.E. 890), was subject to general demurrer and the trial court erred in overruling the demurrer thereto and in refusing to dismiss the petition.
2. Insurance is a matter of contract and the consent of the parties to all the terms being essential to complete the contract, the failure of the plaintiff (omitting conclusions not supported by the facts pleaded) to allege facts showing an assent to the terms by the defendant, or that the risk was accepted or the policy issued by the defendant was fatally defective, and the trial court should have sustained the general demurrer thereto. Code, § 20-108.
Judgment reversed. Sutton, C. J., and Felton, J., concur.
DECIDED APRIL 28, 1950.
STATEMENT OF FACTS BY WORRILL, J.
M. D. Hamby sued National Life and Accident Insurance Company of Nashville, Tennessee, and alleged that: "3. On the 9th day of September 1949 the defendant did enter an agreement with the plaintiff through its agent, G. F. Chandler Sr., to insure the life of the plaintiff for $1000, and to insure the plaintiff against certain personal injuries to his person, including insurance against loss of either hand of the plaintiff in the sum of $1000. 4. On said date, September 9, 1949, the plaintiff paid defendant, through said agent, G. F. Chandler, Sr., the sum of $1.06 in lawful U.S. Currency and cash as premium in advance on said contract of insurance for one month from September 9, 1949, to October 9, 1949, and said agent agreed then and there to deliver the defendant's contract of insurance as provided herein to the plaintiff within a reasonable time. 5. While said contract of insurance was thus in full force and effect and the required premiums thereon fully paid in advance, to wit, on the 12th day of September 1949, the entire left hand of the plaintiff was completely severed from his arm at the wrist by a power driven band saw and accidentally at the place of business of W. V. Ogletree Cabinet Company, 146 Forsyth Street, S.W., Atlanta, Georgia. 6. That since the said accident to the filing of this suit, the plaintiff has constantly demanded of the defendant: (a) That defendant deliver to him the said contract of insurance which plaintiff paid for. (b) That defendant furnish plaintiff its forms for filing with defendant his proof of claim or loss. (c) That defendant pay to the plaintiff the sum of $1000 or other large sum due the plaintiff under the terms of said contract and agreement account of his accidental injury. 7. That defendant has consistently refused all of the said demands of the plaintiff and denied to the plaintiff consistently that it is liable or indebted to the plaintiff in any sum whatsoever. 8. That plaintiff is thus unable to set out a copy of the said contract of insurance for the reason that defendant has refused to deliver the same to him."
The defendant demurred generally to the petition, the court overruled the demurrer, and the defendant excepted.