50 Ga. App. 260 | Ga. Ct. App. | 1934
S. M. Alford filed suit against the Inter-Ocean Casualty Company on an insurance policy, to recover certain sick benefits. The defendant answered and the plaintiff demurred to the answer. Plaintiff’s demurrer was sustained, and to this judgment the defendant company excepted pendente lite and assigns error thereon in its bill of exceptions. Thereafter the defendant company offered an amendment to its answer, which was allowed. The case was called for trial and testimony introduced only on the issue raised by the amendment, the defendant company assuming the burden of proof. At the conclusion of the testimony the court sustained a motion to direct a verdict in favor of the plaintiff, and judgment was duly entered. The defendant company assigns error on this judgment.
The petition alleged, in brief, that the policy sued on contained a monthly sickness benefit of $100; that petitioner is permanently and totally disabled by reason of illness; and that at the time of the filing of the suit the defendant company was due plaintiff the sum of $500. A copy of the contract was attached to the petition as an exhibit. The defendant company answered, in brief, that the policy provides for $100 per month sick disability benefit; but that it also provides, in section U of the policy, that the company has the option of paying two times the monthly indemnity Ness sums previously paid to the insured for said disability, with a refund of unearned premiums, which shall release the company from further liability;” that it had tendered the plaintiff $300; and that “said amount is now in the hands of said clerk, is present in court, and is available to petitioner at any time he cares to claim the same.” The demurrer to the answer alleged that section IT of the policy “is inconsistent with and repugnant to the other conditions and sections contained in said policy of insurance, and attempts to nullify the general benefit provision of said contract, and because of such, said section IT is inoperative and can not be relied on by defendant as a legal defense.” On the first page and in the beginning of the policy appears the following:
“Monthly Accident Indemnity Monthly Sickness Indemnity $100.00 $100.00”
Under the head of “Total loss of time from sickness—house confinement,” section G of the policy provides that “If the insured is totally disabled, necessarily and continuously confined in the home
The defendant’s amendment to its answer set up that it issued a check for $14.70 marked “In full payment, satisfaction, discharge, and release of any and all claims which payee” might have under the policy in question; and that the acceptance and cashing of the check released defendant from all liability. The position of the defendant company seems to be that the plaintiff refused the $200 tendered to him and tendered in court, and preferred to accept $14.70 in settlement of the claim. In the first place the check provided that the “payee” released all claims; and the plaintiff was not the payee. Mrs. S. M. Alford cashed the check, and the check was payable to her, and not to her husband, the insured, and not to her as agent for him. In the second place the check showed on its face that it was not in settlement of the claim but was a refund of three premiums which Mrs. Alford had paid the defendant company after her husband, the insured, became disabled, and which, under the policy, admittedly were not due. On the face of the check appears: “Eef’d. Prem. $14.70.” And on the back of the check above Mrs. Alford’s endorsement is the following: “Eefund of premium paid for April, May, and. June, 1932, on policy
Judgment affirmed.