52 S.E.2d 491 | Ga. Ct. App. | 1949
The amendment to the petition did not strengthen it in any particular as to alleged defects pointed out by the original demurrers to the original petition. Since the court sustained demurrers and ordered that the action stand dismissed unless amended in a certain time, and the amendment did not improve the petition insofar as the demurrers sustained were concerned, the court did not err in sustaining the demurrers to the amendment and to the petition as amended and in dismissing the action.
Count two of the original petition set forth the identical paragraphs 1-8 of count one and further alleged: 9. The insured held another policy with face value of $500, which carried a double-indemnity feature of $500. 10. The insured on January 1, 1948, made application for the cash value of said policy for the amount of $16, in order to secure funds with which to pay the premium on the policy herein sued on. 11. The agent of the defendant company, knowing full well the insured's reason for surrender of said policy, accepted the policy and the application for cash-surrender value amounting to $16 for the purpose of paying the premium on the policy herein sued on. 12. On February 25, 1948, the same date insured was injured, he received a check for $16; but more than a month having expired from the making of the application and receipt by him, he had no opportunity of paying the proceeds to the defendant. 13. It had been the custom on numerous occasions for the defendant to allow premiums under this policy to become in arrears for as much as two months at a time without canceling the policy; and the agent of the defendant was well aware that the purpose of the money received from the surrender of the smaller policy was to be applied on the premium due on this policy sued on. The defendant company neglected for nearly two months to forward said money and made it impossible for the insured or the plaintiff to pay the premium due on the policy sued on in this case.
The defendant filed its general and special demurrers, all of which were sustained except one. Grounds 1, 2, and 3 of the demurrers were directed at the petition as a whole and to counts one and two on the ground they failed to set out a cause of action. Ground 4 was not ruled on and need not be considered. Grounds 5 and 8 moved to strike paragraph 7 of counts one and two on the ground that they were conclusions. Grounds 6 and 9 demurred specially to paragraph 7 of counts one and two on the grounds: (1) the amount of alleged cash or loan value is not alleged; (2) not alleged in what way said cash or loan value was calculated; (3) does not set forth the expenses and disbursements *786 that were necessary for the defendant to make from said two years of alleged paid premiums. Grounds 7 and 10, referring to paragraph 8 of counts one and two, were met by amendment and need not be considered. Grounds 11, 12, 13, 14, and 15 were directed at paragraphs 9, 10, 11, 12, and 13 of count two on the grounds: (1) were not germane to the issues in said case; (2) were irrelevant, immaterial, and highly prejudicial to the cause of the defendant; (3) seek to vary the terms of an unambiguous written contract. The court's order sustaining the demurrers stated: "said petition is hereby dismissed" subject to amendment, which had to be filed by 5 p. m. the following day.
The plaintiff, without excepting, then amended her petition in the following manner: (1) by adding to paragraph 4 of counts one and two, that the method of payment of premiums had been changed from quarterly ($12.09) to a monthly basis ($4.14) more than a year prior to the death of the insured; (2) by striking paragraph 13 of count two and adding a new paragraph, alleging that it had been a custom on a number of occasions for the defendant to allow premiums to become in arrears for as long as two or three months, and that the defendant's agent accepted these deferred payments and the defendant had ratified such conduct in accepting the payment of premiums; that at the time of the insured's death, premiums were only two months in arrears, and he had a right to rely on the custom, and his failure to pay premiums for the two months in arrear should not have worked a forfeiture of the policy; (3) by adding to count two the following paragraph known as paragraph 14, alleging in substance that the defendant and its agents were well aware that the money secured from the surrender of the smaller policy was to be applied on the policy sued on, and that the defendant neglected for nearly two months to forward said money and made it impossible for the insured or the plaintiff to pay the premium due; (4) by adding a new count known as count three, which is identical to count two as amended with the following additional allegation: that the defendant company held $29 growing out of said policy for the benefit of the insured at the time of the so-called lapse, which should have been applied to the payment of the premium; and that the defendant company *787 at the end of the second policy year had a reserve of $20 for the benefit of the insured growing out of the policy, but none of the proceeds were applied on the policy.
The defendant demurred generally and specially to the petition as amended and renewed its original demurrers. The court sustained all the demurrers and dismissed the petition. The plaintiff excepted to that judgment.
Whether the original ruling of the trial judge in sustaining the general and special demurrers of the defendant was right or wrong, it became the law of the case and binding on the parties thereto. Darling Stores Corp. v. Beatus,
Under the terms of the non-forfeitable clause, the company specifically contracted to apply the remainder of the cash value to Extended Term Insurance "as provided in the guaranteed values of this policy." There being no cash or loan value listed in the guaranteed-values table until the end of the third year, the insured at the end of the second year had no reserve fund from which the company could apply on extended term insurance. "From its express provisions it appears that no present cash value and no automatic extension attached as incident thereto until three annual premiums had been paid and until three full years had passed. This is the contract as written: Entered into by competent parties, not unlawful in itself, not contrary to public policy, and in violation of no statute. It is not within the province of courts to whittle away by nice distinctions the patent meaning of plain English." Pacific Mutual Life Insurance Company v. Turlington,
The plaintiff relies on the case of State Mutual Life Ins.Co. v. Forrest,
The plaintiff having failed to amend the petition to meet the sustained demurrers, the court did not err in sustaining the renewed demurrers to the petition as amended and to the amendments, and in dismissing the action.
Judgment affirmed. Sutton, C.J., and Parker, J., concur.