34 S.E.2d 633 | Ga. Ct. App. | 1945
The petition failed to show any right on the part of the plaintiff to bring or maintain the present action, and the court erred in overruling the defendant's general demurrer.
It was alleged that the premium was duly paid to and accepted by the defendant insurance company, and that the aforesaid receipt was duly issued by its agent in accordance with the custom and forms provided by said company and which was a part of said application; and that the application was accepted and approved by the company for the amount of insurance applied for and according to the terms and plan of the application, and was so set up on the records of the company; but that no insurance policy was delivered to the applicant, as he was injured in an automobile accident shortly after making the application and died on May 3, 1944; that the insurance was in effect by virtue of and under the binding receipt issued to the applicant, from April 10, 1944; and "that the said Luther C. Marks died on the 3d day of May, 1944; therefore, said defendant become indebted to plaintiff in the sum of $1000 on said date."
The defendant filed a general demurrer to the petition, to the effect (1) that no cause of action was set forth; (2) that the alleged contract of insurance as evidenced by the receipt was not in writing as required by our statutes; (3) that the petition fails to show any right of recovery in the plaintiff. The defendant also filed a special demurrer, which is not now relied upon. The court overruled the demurrers, and the defendant excepted.
The point raised by the general demurrer, that the plaintiff does not show any right to bring or maintain the present suit, is well taken and is controlling. The suit is brought by the plaintiff in her individual capacity and she fails to show any right on her part as such to bring or maintain the action. The only connection that she shows with the subject-matter of the suit is that the applicant for the insurance, Luther C. Marks, was her husband. She does not allege or claim that she was the beneficiary of the insurance for which he had applied. "Ordinarily a policy of insurance upon *642
the life of a married man, where no person is named therein as the beneficiary, is not payable to his wife, but is payable to the executor or administrator of his estate." Pate v.Insurance Co. of Virginia,
On demurrer, not only must the petition be construed most strongly against the pleader, but the court, in passing upon the sufficiency of the allegations to make out a case, should keep in mind the principle that every material fact which goes to constitute the plaintiff's cause of action or right to recover must be alleged; that is, he must sufficiently allege every fact which he will be required to prove in order to recover. Groover
v. Simmons,
Judgment reversed. Felton and Parker, JJ., concur.