9690, 9731 | Ga. Ct. App. | Jan 29, 1919
On June 27, 1910, The National Life Annuity Association, a mutual-benefit order, issued two certificates of insurance on the life of Ralph Clifton Lindsey, in which his wife was named as the beneficiary. One certificate (No. 2602) provided for the payment to Mrs. Lindsey, upon satisfactory proof of the death of the insured, of the sum of $2,000 in'100 consecutive monthly installments of $20 each; and provided further, that in the event of the accidental death of the insured before attaining the age of 60 years, the amount payable should be $3,000 in 100 consecutive
It appears, from the allegations in the first count of the plaintiff’s petition, that the insured died on the 7th day of December, 1911, and proof of death was made under policy No. 2602, for $2,000, and the National Life Annuity Association began in February following to pay the $20 per month as stipulated therein, and continued to-pay. the same until that policy or certificate was assumed by the Independent Order of Puritans, of Pittsburg, Pennsylvania, on April 6, 1912, which assumption was in writing and attached to the policy or certificate; and that the Independent Order of Puritans continued the payment of $20 per month as stipulated in the policy or certificate until 50 payments had been made, and thereupon ceased to make further payments. Plaintiff alleged that the defendant was due her the sum of $20 per month for each month beginning with February, 1916. The second count of the plaintiff’s petition alleged the same facts as to the. death of
The undisputed evidence showed that policy No. 2602 for $2,000 had lapsed, and was absolutely void and of no effect, a considerable time before its transfer and before the death of the insured, and that only the policy for $1,000 was in effect at the time of his death; and therefore it is apparent that no liability under the policy for $2,000 rested on the defendant company, unless its assumption of liability under and by virtue of the contract signed by it, and which was by its terms to be attached to policy No. 2602, could or did of itself create such a liability or obligation. It is hardly necessary to say that if the policy for $2,000 was null and void at the time this assumption of liability was executed by the defendant, no obligation was' thereby created against the Independent Order of Puritans. The original contract having been void absolutely by the failure on the part of the insured to pay the premiums or assessments provided for therein, there was no existing obligation on the part of the National Life Annuity Association of Atlanta, under this contract, in favor of the insured or his beneficiary at the time the assumption of liability was executed by the Independent Order of Puritans, and that assumption of liability merely declares that the defendant “agrees to assume the insurance contract liabilities as set forth [italics ours] in the contract to which this rider is attached, being No. 2602, issued by the National Life Annuity Association of Atlanta, Ga.” Consequently, if the National Life Annuity Association had no liability under certificate No. 2602,
There was evidence that this rider was issued by mistake and was intended for policy No. 2603, for $1,000; and, to bear out this evidence, there was testimony from the plaintiff herself that the $20 coupons surrendered by her on payment of the several monthly installments which she received, 50 in number, aggregating $1,000, were coupons from policy No. 2603 for $1,000—the policy which was in life at the time of the death of the insured. Likewise, the undisputed testimony showed that proof of death was made under policy No. 2603, and no proof of death was.made under policy No. 2602. Therefore no recovery whatsoever was authorized by the evidence, under the first count of the plaintiff’s petition, which sought to recover under policy No. 2602, which had lapsed long before the death of the insured and had not been revived by the assumption of liability referred to above and entered into by the defendant company on April 6, 1912. The only question, therefore, is whether or not, under the terms of certificate No. '2603, which was of force and under which plaintiff had already received at the time the suit was brought the sum of $1,000, which it is therein provided shall be paid upon proof of the death of the insured, the beneficiary is entitled to a further payment of $20 monthly during her life and widowhood. There was testimony to show that this policy should not have contained, the provision as to a continued benefit of $20 per month during the life and widowhood of the beneficiary; whiph testimony was objected to when offered, and, under the pleadings in the ease, was perhaps of doubtful admissibility. This testimony was undisputed, and, if competent and admissible under the pleadings, might have negatived the right of the plaintiff to the continued benefit sued for in the second count of her petition. In, the view we take, it is not necessary, however, either to consider' the various assignments of
The contract makes several different provisions as to the benefits arising thereunder. First, upon proof of the death of the insured, $1,000 shall be paid to the beneficiary in 50 consecutive monthly installment's of $20 each. Second, in- the event that the death o'f the insured be caused by accident before he attains the age of 60 years, the amount payable shall be $1,500, in 75 consecutive monthly installments of $20 - each. Third, should the death of the insured be accidental and “be caused solely by and result from accident of travel, the amount payable shall be $2,000 in 100 consecutive monthly installments of $20 each.” Fourth, “the named beneficiary under this certificate, if the widow of the insured, shall be entitled, after having received 100 monthly payments provided for above, to a continued benefit of $20 per month during the full term of such widowhood; but this continued benefit shall cease upon the remarriage or death of the beneficiary.” It will be observed that there is no provision whatsoever for the payment of 100 consecutive monthly installments of $20 each, except in the case of the accidental death of the insured caused solely by and resulting from “accident of travel.” It will be further observed that the provisions for the payment of a “continued benefit” of $20 per month during the life and widowhood of the beneficiary expressly stipulates that such beneficiary, “if the widow of the insured”, shall be entitled to receive said continued benefit “after having received 100 monthly payments provided for above [italics ours].” The only 100 monthly payments “provided for above” which are referred to in the contract of insurance are to be paid in the event only that the deceased met his death solely on account of or as a result of an “accident of travel.” Construing the, contract altogether, and being not unmindful of the rule that contracts of insurance are to be construed -most liberally in favor of the insured and against the insurer, without- any reference what
Judgment affirmed on main bill of exceptions; cross-bill dismissed.