51 Ga. App. 253 | Ga. Ct. App. | 1935
Patrick sued the insurance company on a certificate of group insurance. The petition was filed on March 39, 1933.
The filing of proof of disability'-, in compliance with the provisions of the contract of insurance in this case, is a condition precedent to the right of the insured to institute an action upon the contract, as no payment is due thereunder until the submission of such proof, unless the same has been waived by the insurance company, as, for instance, by an absolute refusal to pay on demand by the insured; and where the petition of the insured in an action on a certificate of insurance shows that such proof has not been filed or submitted, and no allegation setting up a waiver thereof is set out therein, or where the necessary allegations to show a compliance with these provisions in a policy of life insurance, containing total disability benefits, or allegations to the effect that there has been a waiver thereof by the insurer, are lacking in the petition, it is subject to general demurrer or motion to dismiss. Bailey v. First National Bank, 18 Ga. App. 213 (89 S. E. 80); Graham v. Niagara Fire Ins. Co., 106 Ga. 840 (32 S. E. 579); Continental Ins. Co. v. Wickham, 110 Ga. 129 et seq. (35 S. E. 287).
(a) An absolute refusal to pay the insured, when not predicated upon the failure of the insured to furnish to the insurer due proof of disability, or some other kindred matter, constitutes a waiver of the right of the insurer to insist upon compliance by the insured with a provision in the certificate of insurance to the effect that proper proof of disability should be filed with it before
(b) “A refusal without making known the fact that it is predicated upon the failure to furnish proofs of loss, or some specific ground other than a denial of all liability, will be construed to mean an absolute refusal. If the company refuses to pay because of a failure to furnish proofs of loss, good faith requires that it make this fact known.” Harp v. Fireman’s Fund Ins. Co., 130 Ga. 730 (61 S. E. 704, 14 Ann. Cas. 299).
An absolute refusal by the insurer to pay, made before the expiration of the time within which the insured had to furnish proof of disability will be a waiver thereof; but such refusal made after such time has expired will not be a waiver of such proof. Harp v. Fireman’s Fund Ins. Co., supra; National Life Ins. Co. v. Jackson, 18 Ga. App. 494 (89 S. E. 633). As appears from the statements of facts in this case, proof of disability could be made while the policy was in force, and under its terms it remained in force for three months after total disability and thereafter during such disability and until canceled according to its provisions, and it did not appear that it had been canceled.
A contract of insurance not under seal is a simple contract; and where such a policy contains no limitation as to when suit thereon is to be filed, the general law of this State as to suits on simple contracts shall be applied thereto, and suit on the policy must be filed within six years from the time the cause of action arises. Civil Code (1910), § 4361, Code of 1933, § 3-705. A right of action upon an insurance contract that contains a provision to the effect that no payment thereunder shall be payable until the submission of due proof of disability does not ordinarily arise until the sum claimed thereunder is due and payable. Jackson v. Southern Mutual Life Ins. Co., 36 Ga. 429.
Applying the above rulings to the state of facts set out in the petition in this case, together with the insurance policy attached thereto, the petition set out a case for submission to the jury. The allegations in the petition, to the effect that in Febru
It follows that the trial judge erred in sustaining the defendant’s motion to dismiss the plaintiff’s petition and in dismissing the same.
Judgment reversed.