Metropolitan Life Insurance v. Fields , 53 Ga. App. 76 ( 1936 )

ON MOTION FOR REHEARING.

Counsel for the defendant in error contend in their motion for rehearing that the insured had no notice of the provision in the policy to the effect that no disability benefits would be paid unless proof of disability was given within one year from the termination of the insurance. The first sentence in the certificate of insurance issued to the insured was as follows: “Under and subject to the terms and conditions of its Group Life Policy No. 6100G, Emmett I. Melds . . is insured for one thousand dollars.” The certificate of insurance and the master-group policy formed the contract between the parties in this case. The pertinent provisions, terms, and conditions of the certificate and group policy, with reference to the requirement of making proof of disability within one year from the termination of the insurance, are set out in the above opinion. It will be seen that the policy provided that no disability benefits would be paid unless proof of disability was made within one year from the date of the termination of the insurance, which provision this court held to be a condition precedent to the right of the insured to recover disability benefits under this policy. The cases cited and relied on by counsel for the defendant in error in their motion for rehearing are not contrary to but are in line with the ruling in this case. In Harp v. Fireman's Fund Ins. Co., 130 Ga. 726 (61 S. E. 704, 14 Ann. Cas. 299), the policy provided that the insured should give written notice of proof of loss within sixty days after the fire, but there was no express provision in the policy that if proof of loss were not furnished within the sixty days the policy would be void and the rights of the insured forfeited. It was held there that the meaning of the provision therein referred to was that no suit could be commenced until there was a compliance with the requirements as to the furnishing of proof of loss, but that the policy would not be forfeited because of the failure to furnish proof of loss within the sixty days after the fire. It was further held: “Under this provision time is not of the essence of the contract as to the furnishing of proofs of loss. The policy does not provide that no suit can be maintained unless there is full compliance with its requirements.” In Southern Fire Ins. Co. v. Knight, 111 Ga. 622 (36 S. E. 821, 52 L. R. A. 70, 78 Am. St. R. 216), where a provision in a policy required the insured to furnish proofs of loss within sixty days after the fire, and also provided that no suit thereon should be brought unless commenced within twelve months after the fire it was held, “that if the insured furnished the required proofs of loss in time for at least sixty days to elapse between the date upon which they were furnished and the expiration of the twelve months limitation, the policy was not forfeited by a failure to furnish such proofs within sixty days after the fire occurred.” Time for filing the proof of disability was of the essence of the contract in the present case, under the terms of the insurance contract between the parties; because it was specifically provided that “no payment for total and permanent disability benefits shall be made unless written notice thereof has been presented to the company within one year after the termination of the insurance on any such disabled employee.”

The motion for rehearing is denied.