Prudential Insurance Co. of America v. Herndon , 40 Ga. App. 692 ( 1929 )

ON MOTION FOR REHEARING.

Plaintiff, by motion for rehearing, contends that there was no demurrer to the petition in the instant case, and that the proof submitted substantially proves the case as laid, and invokes the ruling of the Supreme Court in Kelly v. Strouse, 116 Ga. 872 (43 S. E. 280), that “it is not the office of a motion for a new trial to call in question the legal sufficiency of the pleadings of the plaintiff.” The case referred to was not overlooked by this court, but the principle stated has no application in the instant case, for the reason that the plaintiff in his petition did not set forth, or attach as an exhibit, the master policy issued by the defendant company to the employer of the plaintiff, but merely set forth the group certificate issued to the plaintiff. The benefits payable under the group certificate issued to the plaintiff, and set forth by the petition, were subject to and dependent upon the terms and conditions of the master or group policy issued to the employer and identified by the certificate. As introduced in evidence, this master policy contained the provision, set forth in the decision, that compensation as sued for was payable on account of injuries “effected solely through external, violent, and accidental means.”

Rehearing denied.