56 Ga. App. 527 | Ga. Ct. App. | 1937
John Addison Lester and Mrs. J. A. Lester, as administrators of the estate of John Addison Lester, instituted the present action against Boyal Arcanum, a non-resident fraternal
This court is of the opinion that the verdict is contrary to laiv and without evidence to support it. This is not a suit by the beneficiary named in the certificate, as such, to enforce the payment of the death benefit set out in the certificate, but it is a suit by the beneficiary and another, in their capacity as administrators of the estate of the insured, to recover the assessments paid by the insured under the certificate, on the theory that the insurer committed a breach of the contract by a wrongful cancellation thereof during the lifetime of the insured. It appears from the allegations of the petition as originally filed, though these allegations were withdrawn by amendment, that the beneficiary, and joint plaintiff here, has assigned all of her rights in the certificate of insurance to another for a valuable considération. This tends to explain why the present character of action was prosecuted. The entire evidence at the trial was directed to the issue whether the insured had paid to the defendant the May, 1935, assessment. While this is not an equity case (Royal Arcanum v. Lester, 184 Ga. 51 (190 S. E. 562) wherein, under the Code, § 37-1104, the trial judge shall, at the request of either party, submit to the jury only special issues of fact, upon which
Judgment reversed.