Opinion
44673.
SUBMITTED SEPTEMBER 11, 1969.
DECIDED OCTOBER 20, 1969.
Claim to insurance proceeds. DeKalb Superior Court. Before Judge Dean.
E. J. Hendon, Jr., Hoyt L. Bradford, for appellants.
Walter V. Beasley, for appellees.
The overruling of the motion for a judgment notwithstanding the verdict was not error.
SUBMITTED SEPTEMBER 11, 1969 — DECIDED OCTOBER 20, 1969.
This is an action brought by the appellant, as the mother and heir of Winford O. West, who at the time of his demise was in the military service of the United States and had a group life insurance contract, which was written by the Prudential Insurance Company of America, in the amount of ten thousand dollars. At the time of the death of the appellant's son, he was divorced from the defendant and had one minor son of the age of two years. On May 22, 1967, Winford O. West, his ex-wife, the appellee and their minor son, Samuel Winford West, were riding in an automobile driven by the appellee which became involved in a collision with a bridge abutment and Winford O. West and Samuel Winford West were both killed.
After a claim by Mrs. Lorenda C. West, as administratrix of the estate of Samuel Winford West, had been approved for the proceeds of the group policy on the life of Winford O. West, Mrs. Annie L. Day filed a petition against the appellee and Prudential seeking the proceeds of the insurance policy. Prudential filed an answer asking for leave to pay proceeds of the insurance policy into the registry of the court. The appellee, Mrs. Lorenda C. West, filed her answer stating that she had qualified as administratrix of her son's estate. A motion for summary judgment of the appellee was denied. A motion for judgment on the pleadings filed for the appellant was also denied.
The case proceeded to trial before a jury, and a verdict was entered finding that Winford O. West died prior to his son.
The court then entered an order awarding the ten thousand dollars to the appellee, Lorenda C. West, as administratrix of the estate of Samuel Winford West.
The appellant filed a motion for judgment notwithstanding the verdict which was overruled and the case is here for review.
The question for determination is whether the appellee, as administratrix of Samuel Winford West, should receive the proceeds of the group policy or should Mrs. Annie L. Day, the insured's mother, receive the insurance payment.
The beneficiary designation form, signed by the insured, provided: "Have payment made in the order of precedent set forth in the law." Following the provision of U.S.C.A. § 38-770 (Added Pub.L. 89-214, § 1 (a), Sept. 29, 1965, 79 Stat. 883) the policy provides: "If at the death of the member, there be no surviving designated beneficiary as to all or any part of his insurance, then the amount of the insurance payable for which there is no surviving designated beneficiary shall be payable to the person or persons listed below surviving at the date of the member's death in the following order of precedence: 1. To the widow or widower of the member; 2. If neither of the above, to the child or children of the member, in equal shares, and descendants of deceased children by representation; 3. If none of the above, to the parents of such member, in equal shares, or the survivor of them."
The appellant first contends that the record does not support the finding of the jury that the insured predeceased his son. With this contention we cannot agree. There was evidence that immediately after the collision the insured father: had no pulse beat; eyes were dilated staring straight ahead; was not breathing; had no movement of his body. There was opinion testimony based on the above facts that the insured was dead immediately after the collision. However, in regard to the child there was evidence that the child was crying after the collision and was alive when he was placed in the ambulance.
The appellant further argues that the insured son would not have been entitled to the proceeds of the policy because the federal statute provides that payment of the death gratuity is conditioned upon the beneficiary being alive to receive such payment. The provision of Public Law 89-214 was in regard to the interim coverage until the effective date of the group plan. After the group plan took effect the provisions of U.S. C. A. § 38-770 controlled the conditions and priority of payment to the beneficiaries of the group policy.
The insured's son, Samuel Winford West, was "surviving at the date" of the insured's death and thus was entitled to the proceeds of the policy.
Judgment affirmed. Pannell and Evans, JJ., concur.