53 Ga. App. 28 | Ga. Ct. App. | 1936
This suit is against the New York Life Insurance Company on two policies of life insurance containing total-disability clauses. On August 27, 1918, the company issued to the plaintiff the two policies sued on, one for $2000 and the other for $3000. They were assigned to the First National Bank of Vidalia. The plaintiff paid the annual premiums of $152.50 to and including their anniversary date, August 23, 1930. Each policy contained the following provisions: “And the company agrees to pay to the insured one tenth of the face amount of this policy per annum, during the lifetime of the insured, if the insured becomes wholly and permanently disabled, before age 60, subject to all the terms and conditions contained in section 1 hereof.” Section 1 of the policy provided: “Whenever the company receives due proof, before default in the payment'of premiums, that the insured, before the anniversary of the policy on which the insured’s age at nearest birthday is 60 years and subsequent to the delivery hereof, has become wholly disabled by bodily injury or disease so that he is, and will be presumably [italics ours] thereby permanently and continuously prevented from engaging in any occupation whatsoever for remuneration or profit, and that, such disability has then ex
The defendant denied its liability for any sum, setting up that the plaintiff was not “wholly and permanently disabled and permanently and continuously prevented from engaging in any occupation whatever for remuneration or profit,” and that the plain
The verdict is not contrary to the law. Nor is it unsupported by the evidence, in that it does not appear that the insured furnished the company with due proof of disability, as required by
It also appeared from the undisputed evidence as follows: On September 31, 1938, about four months after the injury, the insured by letter to its general agents in Savannah, Georgia, advised the insurer of his injury and stated that he was crippled therefrom and wholly disabled from working and getting about. On October 3, 1938, the insured, in response to a reply from the company to his letter, asking for further information and proof, presented his claim for disability benefits and proof of his disability, and included his statement and that of his attending physician, these being on forms furnished by the insurer. The insured stated therein that he was wholly disabled, on account of such injury, from pursuing any occupation or performing any work for remuneration or profit. The doctor stated, in answer to a question as to whether the insured was totally disabled and prevented from engaging in any occupation whatsoever for profit or remuneration, that the insured was so disabled, and had been since the time of his injury on April 38, 1938, except that he could with great difficulty ride about a little for the past month. In answer to the question whether in his opinion the insured would be permanently, continuously, and wholly prevented for life from pursuing any and all gainful occupations, by reason of this disability, he stated “No, after one or two months will be able to perform some of duties.” Thereafter, on October 10, 1938, the insurer denied liability and in a letter to the insured stated that it did not appear from the proof submitted that the insured was permanently, continuously, and wholly prevented for life from pursuing some gainful occupation, and that if the insured would inspect his policies he would find that the insurer was not liable for temporary total disability but only for permanent and total disability, and that it did not appear that the insured would always be totally disabled. The insured paid the premiums for the years 1938 and 1939. In February, 1939, the insured again made
Thereafter the insured continued to pay his annual premiums. On October 14, 1931, he again wrote to the company’s agents that he should have received money from them for his disability, as provided in the policies; that he had been unable to work for nearly four years, and had made several complaints and applications to the company for compensation; that he was not going to pay any more premiums or sign, any notes therefor; and that it was right that he should have his compensation, and he intended to get it by law if necessary. The company’s agents replied that they did not understand the insured’s letter; that they had received his other claims, but did not consider him then permanently
It also appeared from the uncontroverted evidence that on March 7, 1929, Dr. Lucas, the medical examiner of the insurer, at the request and in behalf of the company, examined the insured and made his report to the company, stating that the insured was in good health prior to his injury on April 28, 1928, that his injury resulting in his disability was caused by a bullet wound from a forty-five calibre pistol in the hands of a drunken man, and that the insured had been prevented by reason of his disability from engaging in any occupation whatsoever for remuneration or profit since his injury; and in answering the question, in the form furnished for his report by the insurer, as to whether the disability of the insured would be permanent and prevent the insured for life from pursuing any and all gainful occupations, this doctor stated: “Can not answer, because it is yet suppurating.” This
The trial was in October, 1934, and the plaintiff’s attorney announced in open court that the plaintiff waived recovery of disability benefits for the year 1929. The defendant, after the institution of the suit, had withdrawn its denial of the plaintiff’s disability and right to recover for the years 1933 and 1934, and thereby accepted as sufficient the proof of disability submitted in 1932. The defendant at first denied liability on receipt of this proof, stating that it did not consider the insured wholly, permanently, and continuously disabled for life from pursuing any and all gainful occupations, as provided in the policies, and did not deem him entitled to disability benefits. The verdict for benefits of 1930, 1931, and 1932 was authorized under the facts, first, in that the proofs submitted by the insured were a sufficient compliance with the policy provisions with respect to showing permanent total disability, as this term has been defined by the ap
The plaintiff recovered the amount paid by him to the insurer as premiums for 1929 and 1930. He brought suit for the recovery thereof, but did not allege or prove that there was any urgent necessity for their payment, or that they were paid under a mistake of facts, or that he was induced to pay them by any fraud or artifice practiced upon him. “Payments of taxes or other claims, made through ignorance of the law, or where the facts are all known, and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party, are deemed voluntary, and can not be recovered back, unless made under an urgent and immediate necessity therefor, or to release person or property from detention, or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule.” Code of 1933, § 20-1007. See also Arnold v. Georgia Railroad &c. Co., 50 Ga. 304, and cit.; 2 Enc. Dig. 858, 10 Id. 300; White v. Rowland, 67 Ga. 557 (44 Am. R. 731); Strachan Shipping Co. v. Savannah, 168 Ga. 309 (147 S. E. 555); Taranto v. Richardson, 50 Ga. App. 851 (179 S. E. 202) et seq., and cit. So it would seem that the payment of those premiums by the plaintiff, under the facts of this case, was purely voluntary. The general presumption is that whenever one pays money to another, the money is due and the payee is entitled thereto, and its payment is voluntarily made by the payer; and in an action to recover it the burden is on him to show that the payment was not due, and that the money was not paid by him voluntarily. This rule as to voluntary payments applies to the payment of insurance premiums by the insured to the insurer. See generally 21 R. C. L. § 165 et seq., 141; N. Y. Life Ins. Co. v. Lecks, (Fla.), 165 So. 50; Note 14 Brit. Rul. Cas. 346; 53 A. L. R. 953, note; 75 A. L. R. 658, note; Jones v. Provident Savings Life Assurance Society, 147 N. C. 540 (61 S. E. 388, 25 L. R. A. (N. S.) 803, note); 32 C. J. 134; Featherstone v. Stonewall Life Ins. Co., 165 Miss. 164 (147 So. 305); Hartley
The verdict, in so far as it included $300 attorney’s fees and $375 as a 35 per cent, penalty on the recovery of disability benefits for the years 1930, 1931, and 1932, under the provisions of Code of 1933, § 56-706, was not contrary to law nor unsupported by the evidence. It is usually a question for the jury whether an insurance company, in refusing to pay, acted in bad faith and thereby subjected itself to the penalty and attorney’s fees provided for by statute. The insurance companies doing business in this State, where they refuse to pay within sixty days after demand, shall be subject to a penalty of 35 per cent, on their liability under the policies and to reasonable attorney’s fees, where the jury trying the case shall find that'the refusal to pay was in bad faith. Where the insured was injured in April, 1928, and submitted proof of his total and permanent disability in October, 1928, which was
The contention of the defendant, that the judge committed prejudicial error in admitting in evidence the letters between the insured and the insurance company, as to the claim of the plaintiff for total-disability benefits beginning in September, 1928, and the statements and medical certificates and reports of defendant’s medical examiners as to the insured’s condition and extent of his disability, and in instructing the jury relative thereto, the same being unambiguous, and it being the duty of the court to construe them without the aid of the jury, is without merit. It was proper for the jury to consider these proofs or statements, the report of the medical examiners, the letters between the insured and insurer concerning his claim for disability, and the refusal to pay based on the ground that it did not consider the insured totally and permanently
The verdict was not contrary to law and the evidence because the proof submitted by the insured on February 4, 1932, affirmatively showed that the permanent disability had existed only since January 1, 1930, on account of the statement in the proof furnished in February, 1932, that the insured had been practically disabled since April 28, 1928, the date of the injury to the insured, and certainly since January 1, 1930; and that under the terms of the policies, the disability benefits only became due one year from August 23, 1932, and therefore that the plaintiff was entitled to recover only the amount tendered and paid by the defendant into court, being the yearly benefits for 1933 and 1934, and due on August 23, 1933, and August 23, 1934, each. Construing all of the evidence, the testimony of the insured, and the statements and certificates of the doctors, the insured was totally and permanently disabled from the time of his injury; and the statement by him that he had been so disabled practically since his injury but certainly since January 1, 1930, will not be deemed as a waiver-of any claim for disability prior to that time, and under the facts it did not tend to work an estoppel against the insured from claiming disability benefits prior to that time. Sentinel Fire Ins. Co. v. McRoberts, 51 Ga. App. 732 (179 S. E. 256). The defendant now admits that the insured was disabled and entitled to total disability benefits for 1933 and 1934, but denies that the evidence shows that he was disabled within the meaning of that term for the years 1930, 1931, and 1932. The evidence is that the insured hacl
The effect of the charge of the court was not to place on the company the duty of ascertaining whether the insured was wholly and permanently disabled, within the meaning of the policies, on the mere submission to it by the insured of notice that he was disabled. If the insured furnishes to the insurer proof of total and permanent disability, that is, if the insurer can ascertain from the facts stated in the statement of the insured and the accompanying medical certificate that the insured was wholly and permanently disabled within the meaning of the policies, then, nothing else interfering, it is the duty of the insurer to pay total disability benefits in accordance with its contract.
Under the Code of 1933, § 56-706, the insurer would not be liable to pay attorney’s fees on account of its refusal in bad faith to pay the claim for disability benefits, unless sixty days had elapsed from a proper demand made by the insured for payment. There is no doubt, under the facts in this case, that the insurer, from the proofs submitted to it and the examinations made by its medical examiners, knew the extent of the plaintiff’s physical permanent disability from injury to his right thigh; and the charge of the judge, that “if the jury concludes in cases of this kind that the
While it was inaccurate for the judge, after correctly charging the jury that the burden was on the plaintiff to make out his case by a preponderance of the evidence before he was entitled to recover, to state that if the plaintiff carries the burden of establishing his right to recover, “yet, after having heard the defendant’s side of the case, you believe that the evidence preponderates in favor of the defendant,” they should find for the defendant, still, under the facts of this case, this inapt and incorrect statement does not require the grant of a new trial, the charge being otherwise correct and complete.
Where the principle of law embodied in a request to charge is covered in the general charge, it is not error to refuse to give the same. A ground of a motion for new trial must be complete without reference to other grounds or parts of the record. It has been held repeatedly that a ground of a motion for new trial, in which a refusal to give in charge a requested instruction is complained of, is incomplete and need not be considered, where the movant fails to allege that the requested instruction was not covered by the general charge, and an examination of the charge given is necessary to ascertain whether it covered the requested instruction or not. Southern Ry. Co. v. Slaton, 50 Ga. App. 570 (178 S. E. 392); McRae v. Boykin, 50 Ga. App. 866 (6) (179 S. E. 535); Phillips v. State, 149 Ga. 255 (99 S. E. 874); Nipper v. Minix, 50 Ga. App. 51 (176 S. E. 890); Bray v. C. I. T. Cor., 51 Ga. App. 196 (4) (179 S. E. 925); Mobley v. Russell, 174 Ga. 843 (164 S. E. 190). The last three grounds of the motion for new trial are insufficient, in that it is not alleged that the principles of law therein embodied were not covered by the general charge. Therefore they will not
Applying the foregoing principles, the judgment is affirmed on condition that the plaintiff write off from the verdict and judgment the following items: Premium for 1929, $152.30, and interest thereon, $54.68; premium for 1930, $152.30, and interest thereon, $43.02; and the penalty of $76.15, assessed on the recovery of premiums; making a total of $478.45; otherwise the judgment will stand reversed.
The judgment of affirmance as to the amount of the verdict ánd judgment is adhered to on rehearing, except as to the items specified in division 8 of this opinion.
Judgment affirmed on condition.