Mitchell v. Liberty National Life Ins. Co. , 72 Ga. App. 600 ( 1945 )

1. Where a copy of the insurance policy is attached to and made a part of the petition, and the petition alleges that "the said policy is in full force and effect," such an allegation is equivalent to alleging, among other things, that the premiums had been paid.

2. The petition here alleged that the policy in question was in full force and effect, and was not subject to the demurrer, "that it is nowhere alleged that all premiums have been paid . . and an allegation to that effect is a necessary requisite."

3. The words "accidentally slipped," as used in the petition, imply the happening by chance of an undesigned and involuntary event, which, in this case, in the connection in which it is used, is an allegation that "bodily injury" resulted therefrom, and which, we think, brings the event within the terms of the policy. The petition was not subject to general demurrer on the ground that it does not allege that the disability was caused by "bodily injury" and not by disease.

DECIDED JUNE 23, 1945. The allegations of the petition which are material to an understanding of the questions here raised are: "Plaintiff alleges that she is the insured named in policy No. 1305311 of which the defendant has become the insurer. A copy of said policy is hereto attached and marked `Exhibit A' and made a part of this petition; that said policy is in full force and effect and contains a disability provision therein that while said policy is in force and effect [if] the insured shall sustain a bodily injury, because of which he or she shall become totally and permanently disabled and will be permanently, continuously, and wholly prevented thereby from performing any work whatever for compensation, and after such disability has existed continuously for ninety days, the Southern Insurance Company, of which the defendant become successors, will immediately thereafter, upon receipt of satisfactory proof of such impairment, pay to the insured one half of the amount of insurance payable under this policy in the event of death. Thereafter, no further premiums shall be required of the insured, and the amount of insurance payable at the death of the insured shall be the amount provided under this policy less the amount already paid; that she has become permanently and totally disabled by reason of her limbs becoming useless to her five or six years ago, and that she has on the 2d day of November, 1942, filed a claim with the defendant showing her condition and her inability to work and earn anything, and serves defendant with notice to have and produce said claim on the trial of this case to be used by the plaintiff as evidence; that after the said policy had been in effect for more than five years and while walking in a normal way she sprained her left ankle by having accidentally slipped, the exact time and place is unknown to petitioner, but petitioner had to be taken to the office of Dr. Russell and he prescribed liniment therefor for several weeks, when said soreness began to move from the place injured to petitioners knee and elsewhere about petitioner's body; that by reason of said injury she has had to consult various and sundry physicians as to her ailment, and that none of them have diagnosed her case alike." 1. The defendant filed a general demurrer to the petition on the ground that it does not set out a cause of action against the defendant, in that, "in the first place, while it is alleged in the petition that `said policy is in full force and effect' it is nowhere alleged that all premiums have been paid. The statement to the effect that the policy was `in full force and effect' is a mere conclusion. In order for a policy to be in force and effect it is necessary that all premiums on the policy be paid, and an allegation to that effect is a necessary requisite." This court, in National Life Accident Insurance Co. v. Lockett, 65 Ga. App. 866 (16 S.E.2d 776), in referring to the case ofGuaranty Life Insurance Co. v. Johnson, 60 Ga. App. 292 (3 S.E.2d, 773), said: "The effect of this court's ruling was that, as a copy of the policy was attached to the petition, the allegation, that the plaintiff had complied with the requirements of the policy, was equivalent to alleging that, among other requirements, the premiums had been paid." By parity of reasoning, when the petition in the instant case attached the policy as an exhibit and made it a part of the petition, and alleged that "the said policy is in full force and effect," the allegation that the policy "is in full force and effect" was equivalent to alleging, among other things, that the premiums had been paid. The defendant relied on Life Insurance Company ofVirginia v. Procter, 18 Ga. App. 517 (89 S.E. 1088), as controlling on this ground. The Lockett case, supra, discussed the effect of the holdings in the Procter case, which holdings are different from and do not control what we are now holding. This ground of the demurrer is not meritorious.

2. The defendant next contends by his general demurrer that, "it was incumbent upon the plaintiff in this case to allege that her disability was caused by bodily injury, that is, accidental injury, and not by disease. The plaintiff in this case must not only allege disability but must connect that disability with a bodily injury." There is no merit in this contention that the "bodily injury" is in no way connected with the "accidental slipping" which allegedly caused the injury complained of. The words "accidentally slipped," as used in the petition, imply the happening by chance of an undesigned and involuntary event which, in this case, it is alleged, resulted in a bodily injury, and which, we think, brings the event within the terms of the policy. Richards v. Travelers' Inc. Co., 18 S.D. 287 (100 N.W. 428, 67 L.R.A. 175). It might be noted that there is nothing in the petition which implies that disease played any part in the injury or the disability, and no question has as yet arisen as to whether disease, if any, was the proximate cause of the permanent disability, if any. 5 Couch's Cyclopedia of Insurance Law, 4005, § 1142; Hall v. General Accident Assurance Corp., 16 Ga. App. 66 (85 S.E. 600). The important questions at this state of the case (when the general demurrer is being considered) are, the allegation as to what caused the disability, if any, and whether the disability was covered by the policy, and not what did not cause the disability. Having alleged affirmatively what did cause the disability, the plaintiff did not have to allege negatively what did not cause the disability. If the disability was caused by disease, and this was a proper defense, the defendant may so show. We do not think this contention of the defendant is meritorious, and the judge erred in sustaining the general demurrer to the petition.

Judgment reversed. Broyles, C. J., and Gardner, J., concur.