43 Ga. App. 775 | Ga. Ct. App. | 1931
Grant Lewis brought an action in the city court of Waynesboro against Interstate Life & Accident Company to recover $294 on a policy of insurance written on the life of Hattie Anderson. After setting out facts showing jurisdiction of the court, the petition alleges that the plaintiff is the beneficiary in said policy; that Hattie Anderson died; that proper proofs of death were duly furnished the defendant; that demand for payment of the claim was made, and the insurer refused to pay said claim for more than sixty days from the date of such demand; and that a copy of the material parts of the policy is attached to the petition. The policy of insurance contains this stipulation: “'This policy shall not take effect if the insured die before the date hereof, or if on such date and at the time of delivery of the policy and -the payment of the premium, the insured is not in sound health, but in either event the premium paid hereon, if any, shall be returned.”
Under the decision in Volunteer State Life Insurance Co. v. McGinnis, 29 Ga. App. 370, 371 (115 S. E. 287), and cit., the petition in the present case was fatally defective prior to its amendment as indicated above. With the amendment allowed, the petition was clearly not subject to the motion to dismiss. The question then is: Was there enough in the original petition to amend by? The amendment under consideration is one of substance. In the leading case of Ellison v. Ga. R. Co., 87 Ga. 691 (5) (13 S. E. 809), this language appears: “But when the amendment needed is one of substance itself, ‘enough to amend by’ does not mean the same as ‘enough to be good in substance without amendment.’ On the contrary, failing to be good in substance is generally the reason why amendment of substance is needed.” In that case Chief Justice Bleckley, speaking for the court, lajrs down the following rule (p. 714) : “From what has been said, it is apparent that nothing less is enough to amend by in matter of substance in respect to the cause of action than a plaintiff, a defendant, jurisdiction of the court, and facts enough to indicate and identify some particular cause of action as the one intended to be declared upon, so as to enable the court to determine whether the facts proposed to be introduced by.the amendment are part and parcel of that same cause; and that when all these elements are in the declara
The following ruling in Georgia Farmers Fire Ins. Co. v. Tanner, 34 Ga. App. 809 (131 S. E. 191), is planted squarely upon code
Under the foregoing authorities, we hold that the trial judge properly allowed the amendment to the petition and overruled the motion to dismiss.
Judgment affirmed.