8 S.E.2d 97 | Ga. Ct. App. | 1940
The court erred in sustaining the general demurrer to the petition.
In the first instance the court did not err in holding that the allegations constituted no cause of action. In seeking a free policy the insured was in effect requesting that a provision of the policy be carried out specifically according to its terms.
The refusal of the company did not prevent the policy from remaining of force as to its prime purpose, that of paying the death benefit in event of death. The cause of action in such an instance would be a suit to enforce the provision of the policy, and not for recovery of all premiums paid, as for a breach resulting in repudiation. In Columbian Mutual Life InsuranceCo. v. Carter,
In the other instance of breach pleaded, a cause of action for recovery of all premiums paid, with interest, was set out, and the court erred in sustaining the general demurrer to the petition. There appears a repudiation of the policy in 1933, but unknown to the insured at the time, and only later when he made the discovery at such time that he was seeking to have issued to him a free policy under his contract on which he was regularly paying premiums. In such instance the measure of damages is recovery of all premiums paid, with interest. In EminentHousehold of Columbian Woodmen v. Bryant,
Manifestly the plea of the breach as in the first instance is superfluous, save only as it may appear as inducement, bearing on the facts alleged in the vital breach.
Judgment reversed. MacIntyre, J., concurs. Broyles, C. J.,dissents. *355