56 Ga. App. 5 | Ga. Ct. App. | 1937
Adams sued the insurance company for recovery of disability-benefit installments and of premiums paid under a policy of life insurance. The defendant demurred to the petition and the demurrer was overruled. The case is in this court on exceptions to that ruling. The policy sued on was issued in September, 1922. The plaintiff claims to have become totally and permanently disabled in August, 1930. However, no notice or proof of disability was filed with the company until September, 1935. Hpon the filing of this notice and proof the company approved the claim. Premiums which have accrued since that date have been waived, and disability benefit installments which have accrued since that date have been paid. The plaintiff now contends that he is entitled to be paid disability benefits covering the period between the date of the commencement of his disability in August, 1930, and the date of the filing of proof of disability in September, 1935; and that he is entitled to recover premiums paid during that period. The questions in the case are: first, is the plaintiff, under the terms of the policy sued on, entitled to recover disability installments for a period prior to the filing of notice, of and proof of disability; and second, is he entitled to recover premiums paid to continue the policy in force during that period ? He does not sue for premiums paid or disability installments accrued subsequently to the date of notice of disability, for the reason that premiums have been waived and disability installments have been paid since that time. The' material parts of the policy are the following: “And further, if the insured becomes wholly and permanently disabled before age 60, the Society will waive subsequent premiums and pay to the insured a disability-annuity of twenty dollars a month, subject to the terms and conditions contained on the third page hereof.” And the following terms and conditions appear on page 3 of the policy: “ (1) Disability benefits before age 60 shall be effective upon receipt of due proof, before default in the payment of premium, that
The plaintiff relies largely on the case of Life Insurance Company of Virginia v. Williams, 48 Ga. App. 10 (172 S. E. 101). The pertinent provisions of the policy there, however, differed from the policy here under consideration. The policy provided: “Upon . . proof satisfactory to the company . . that while the said policy was in full force and effect, before default in the payment of premiums . . the insured has become totally disabled . . and for a period of not less than three consecutive months immediately preceding receipt of proof has been totally disabled . . the company will waive the payment of any premium falling due under said policy during such disability. . . Such waiver of premium shall become effective with the first premium falling due under said policy after the date of the commencement of such disability.” (Italics ours.) That is, in that case, the waiver of any premium became effective after the date of the disability, and did not depend on the time the proof was furnished; and the court held that it was the time of the disability which fixed the waiver of the premiums by the insurance company. We need not challenge the soundness of this construction of the provisions of the policy in that case; for in that case the obligation to furnish proof was no part of the condition precedent to the waiver. The existence of disability before the premium became in arrears, standing alone, was enough to create the waiver. But in the instant case, according to the provisions of this policy, “the disability benefits . . shall be effective upon receipt of due proof . . that the insured became totally and permanently disabled after this policy became effective, . . the first payment to be payable upon receipt of due proof of such disability and subsequent payments monthly there
The obligation of the company under the language of the present policy does not rest upon the existence of the disability, standing alone, but it is the receipt by the company of proof of disability which is definitely made a condition precedent to a waiver by it of payment of the premium becoming due after the receipt of such proof. Bergholm v. Peoria Life Insurance Company, 284 U. S. 489 (52 Sup. Ct. 230, 76 L. ed. 416). The decision in Life Insurance Company of Virginia v. Williams, supra, cited Minnesota Mutual Life Insurance Co. v. Marshall, 29 Fed. (2d) 977, and Bergholm v. Peoria Life Insurance Co., supra. And on reading the Bergholm decision we think it draws, in effect, the same distinction between the principles of law involved in the Bergholm case and Minnesota Mutual Life Insurance Company v. Marshall that we have drawn between Life Insurance Company of Virginia v. Williams and the instant case. The decisions in Jabara v. Equitable Life Assurance Society, 280 Ill. App. 147, and Mullaney v.
The second headnote needs no elaboration. The court erred in overruling’ the demurrer.
Judgment reversed.