42 Ga. App. 587 | Ga. Ct. App. | 1930
Sollie B. Adamson sued the Metropolitan Life Insurance Company, alleging: that on April 28, 1927, he entered into a contract of life-insurance with said company, and, simultaneously with the issuance of said life-insurance policy, which was for $5,000, he entered into a contract with said company which the company called a “supplemental contract,” and which was attached to and made a part of the original policy hereinbefore referred to; and, by the terms of said supplemental contract, and in consideration of an additional sum of $16.05 payable annually, the company agreed “that upon receipt by the company at its home office in the City of New York of due proof, on forms which will be furnished by the company, on request that the insured has, while said policy and this supplemental contract are in full force, and prior to the anniversary date of said policy nearest to the sixtieth birthday of the insured, become totally and permanently disabled, as the result of bodily injury or disease occurring and originating after the issuance of said policy, so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit, and that such disability has already continued uninterruptedly for a period of at least three months, it will, during the continuance of such disability, 1. Waive the payment of each premium falling due under said policy and this Supplemental Contract, and 2. Pay to the insured, or a person designated by him for the purpose, or if such disability is due to, or is accompanied by mental incapacity, to the beneficiary of record under said policy, a monthly income of $10 for each $1000 of insurance, or of commuted value or installments, if any, under said policy.” Petitioner sued for $363.30, the same being for two items; one a premium of $163.30, which had fallen due during the insured’s disability, and the payment of which the defendant had agreed to waive but which the defendant demanded of the insured, and which he paid under protest and in order to keep his policy from lapsing; the other being $50 a month for four
It is undisputed that the plaintiff held the insurance policy, including the supplemental contract, and the petition alleged that while these were both of full force “he became totally and permanently disabled as the result of bodily injury or disease originating after the issuance of said policy, so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit, and that such disability has already continued uninterruptedly for a period of at least three months;” and it is shown by the supplemental contract that during the co7itinuance of such disability the insurance company would “waive the payment of each premium falling due under said policy and this supplemental contract,” and pay to the insured “a monthly income of $10 for each $1000 of insurance under the policy;” the only restrictions thereon being that such disability has already continued uninterruptedly for a period of at least three months, and that such payments shall not “begin of a date more than six months prior to the date of the receipt of the required proof.” Here is a clean-cut contract to pay these items “during the continuance of such' disability,” in the event the insured has “become totally and permanently disabled.” The amendment to the petition contains the affidavit of two physicians, one of whom, in.an affidavit made June 13, 1929, in answer to the question “is he wholly unable to engage in any work, occupation or business suitable to one of his experience, training or qualifications?” replied, “Yes.” To the same question the other physician, on June 26, 1929, answered, “At present.” Both of these doctors show that on the dates of the two items for which suit was brought, the insured was “totally disabled,” and that “such disability had already eon
Under all the particular facts of this case and in the light of the ruling in Penn Mutual Life Ins. Co. v. Milton, supra, the court erred in sustaining the demurrer and dismissing the petition.
Judgment reversed.