Mitchell v. Liberty National Life Insurance , 70 Ga. App. 737 ( 1944 )

The court did not error in sustaining the general demurrer to the amended petition.

DECIDED MARCH 4, 1944. On April 6, 1943, L. C. Mitchell, filed an action for money had and received against Liberty National Life Insurance Company. Subsequently the petition was amended. A general demurrer to the petition as amended was sustained, and that judgment is assigned as error.

The amended petition alleged that on February 10, 1930, the plaintiff procured a policy of industrial life insurance from Southern Insurance Company, of Nashville, Tennessee, on which he was to pay weekly premiums of fifty cents; that about May 1, 1930, the company went into the hands of a receiver in the State of Alabama, and that he was not notified of such receivership; that thereafter he paid his premiums to agents of the defendant insurance company, but believed that the money so paid was going to Southern Insurance Company, and did not learn of its receipt by the defendant company until October, 1942; that thereafter he continued to pay his premiums to said agents until the filing of this suit, and even after the suit was filed. While the petition alleged fraud on the part of the defendant company, the allegation was stricken on demurrer, and there is no exception to that judgment.

The petition sought to recover all premiums paid from May 1, 1930, to April 6, 1943, — the date of the filing of the suit. The plaintiff further alleged that he never purchased any insurance from the defendant company, and had not ratified its assumption of his policy issued by Southern Insurance Company; that his contract with that company involved personal confidence between the parties and could not be transferred without his consent, and he never so consented; that the defendant company is not obligated to comply with the conditions of said policy; that the agents of the defendant company who collected his premiums never told him that the money was being collected for the defendant company; that the payments made by him "were voluntary and were made under the opinion that they were going to the Southern Insurance Company;" that the policy is not in force, because his payments were never "voluntarily" made to the defendant company, and that company is not bound by the conditions of the policy, but by keeping the money so paid, is "getting something for nothing, which is contrary to equity and good conscience." Even where money is paid under a mistake, or in ignorance of facts, it can not be recovered unless the circumstances are such that the party receiving it ought not, in equity and good conscience, to retain it. Atlanta Telephone Co. v. Fain, 16 Ga. App. 475 (2) (85 S.E. 791). The instant petition, construed most strongly against the plaintiff, fails to allege that through the years in which he paid the premiums to the defendant company he did not receive the insurance protection provided in his insurance contract. The petition alleges that the defendant company acquired or assumed the policy from a receiver in the State of Alabama, but fails to set forth any of the circumstances of the assumption. In the absence of any allegation of facts to the contrary, it will be assumed that the defendant acquired the policy in a legal manner, and that the terms thereof became binding obligations on the defendant. It could not have escaped liability on the policy because the insured had not been notified of the assumption of the policy and had not expressly assented thereto. MetropolitanLife Insurance Co. v. Benton, 56 Ga. App. 298 (192 S.E. 520).

It follows that the allegations of the petition that the terms of the policy were not binding on the defendant, and that it "had received something for nothing," and could not in equity and good conscience retain the money paid to it by the plaintiff, were mere conclusions of the pleader which were not supported by the facts set forth in the petition. On the contrary, the facts alleged and the law applicable thereto show that the defendant had provided insurance protection for the plaintiff for more than twelve years, and that it could, in equity and good conscience, retain the money sued for. It was not error to sustain the general demurrer to the petition.

Judgment on main bill of exceptions affirmed; cross-billdismissed. MacIntyre and Gardner, JJ., concur.