Columbian Mutual Life Insurance v. Carter

Columbian Mutual Life Insurance Co. v. Carter

Columbian Mut. Life Ins. v. Carter, 197 S.E. 925 (Ga. Ct. App. 1938)

Court: Court of Appeals of Georgia · State Appellate Courts
Decided: June 30, 1938
Docket: No. 26785
Judges: Guerry
Citations: 197 S.E. 92558 Ga. App. 1501938 Ga. App. LEXIS 212

Opinion of the Court — Guerry

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Guerry, J.

1. In an action upon an alleged contract, the petition should affirmatively disclose (when construed most strongly against the pleader), among other things, (1) the existence of the contract, (2) the failure of the defendant to perform some obligation due to the plaintiff thereunder, and (3) consequent damage to the plaintiff. It is not necessary for the plaintiff to anticipate and negative any possible defense that the defendant may have to the contract sued on; yet, where the plaintiff in his petition does anticipate a possible defense by the defendant, it must be effectually avoided, or the petition is subject to general demurrer. James v. Maddox, 153 Ga. 208 ( 111 S. E. 731 ) ; Smith v. Scarborough, 182 Ga. 157 ( 185 S. E. 105 ) ; Simpson v. Jones, 182 Ga. 544, 547 ( 186 S. E. 558 ); Chance v. Commercial Credit Co., 30 Ga. App. 543 ( 118 S. E. 465 ) ; Davis v. Farmers & Traders Bank, 36 Ga. App. 415 ( 136 S. E. 816 ) ; Williams v. Seaboard Air-Line Ry. Co., 165 Ga. 655 ( 141 S. E. 805 ). Thus, in an action on a contract of insurance (attached to and made a part of the petition), for recovery of its cash value as shown by a table contained therein, which policy provides in part that “The Columbian Mutual Life Assurance Society [taken over by and merged with the defendant] is incorporated as a Eraternal Beneficiary Society under the laws of the State of Mississippi, . . and full compliance with the constitution and laws of the society, now existing or as hereafter legally amended, on the part of the assured is a condition precedent to any liability of the society hereunder,” and where the petition alleges that upon application of plaintiff for the cash value sued for, the defendant company refused payment because an assessment had been levied against the policy in the amount of the cash value, and it is not alleged either in general or specific terms that the defendant had no authority to make such assessment, and it does not affirmatively appear from the allegations of the petition and the contract attached thereto that the defendant had no such authority, and where the plaintiff contents himself with the mere allegation that “he is willing to surrender the policy for cancellation upon payment to him by the company of the cash-surrender value of said policy,” the petition is subject to general demurrer.

2. The mere failure of the insurer to pay, upon demand, the alleged cash-surrender value of the insurance contract, as stipulated therein, does not authorize an action for a breach of the contract for a recovery of the premiums paid thereunder. Farrow v. State Mutual Life Ins. Co., 22 Ga. App. 540 ( 96 S. E. 446 ) ; Moore v. Prudential Insurance Co., 56 Ga. App. 356 ( 192 S. E. 731 ).

*151 Decided June 30, 1938. Ileyman <& Ileyman, C. E. Gregory Jr., for plaintiff in error. George B. Culpepper Jr., contra.

3. Under the above rulings, both counts of tbe petition were subject to general demurrer, and the action should have been dismissed.

Judgment reversed.

Broyles, C. J., and MacIntyre, J., concur.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 10 cases

View all citing references →

Relies on it most ⓘ

Douglas v. McNabb Realty Co.52 S.E.2d 550 (Ga. Ct. App. 1949)
Branan v. LaGrange Truck Lines, Inc.96 S.E.2d 364 (Ga. Ct. App. 1956)
Baggett v. Chavous131 S.E.2d 109 (Ga. Ct. App. 1963)
Eminent Household of Columbian Woodmen v. Bryant200 S.E. 321 (Ga. Ct. App. 1938)
Thyer Manufacturing Corporation v. Drake121 S.E.2d 136 (Ga. 1961)
James v. Brandon7 S.E.2d 305 (Ga. Ct. App. 1940)

Most recent

Baggett v. Chavous131 S.E.2d 109 (Ga. Ct. App. 1963)
Thyer Manufacturing Corporation v. Drake121 S.E.2d 136 (Ga. 1961)
Branan v. LaGrange Truck Lines, Inc.96 S.E.2d 364 (Ga. Ct. App. 1956)
Douglas v. McNabb Realty Co.52 S.E.2d 550 (Ga. Ct. App. 1949)
Joseph Campbell Company. v. Lafara51 S.E.2d 524 (Ga. Ct. App. 1949)
Unity Life Insurance Co. v. Beasley13 S.E.2d 32 (Ga. Ct. App. 1941)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 8

Depth	Case	Cited by
	James v. Maddox, 111 S.E. 731 (Ga. 1922)	19
	Simpson v. Jones, 186 S.E. 558 (Ga. 1936)	12
	Davis v. Farmers & Traders Bank, 136 S.E. 816 (Ga. Ct. App. 1927)	11
	Farrow v. State Mut. Life Ins., 96 S.E. 446 (Ga. Ct. App. 1918)	10
	Smith v. Scarborough, 185 S.E. 105 (Ga. 1936)	9
	Moore v. Prudential Ins., 192 S.E. 731 (Ga. Ct. App. 1937)	9
	Williams v. Seaboard Air-Line Ry. Co., 141 S.E. 805 (Ga. 1928)	7
	Chance v. Commercial Credit Co., 118 S.E. 465 (Ga. Ct. App. 1923)	7

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