Farmer v. Bankers Health & Life Insurance , 69 Ga. App. 105 ( 1943 )

There was evidence authorizing a finding that the insured was accidentally killed. The policy contained the following provisions: "Accidental death benefits: Upon receipt of due proof that the insured, after attaining age 15 and prior to attaining age 70, has sustained, after the date of this policy, bodily injuries solely through violent, external, and accidental means, resulting directly and independently of all other causes in the death of the insured within ninety days from the date of such bodily injuries, while this policy is in full force and effect and while premiums are not in default beyond the grace period allowed in this policy, the company will pay, in addition to any other sums, if any, already due under this policy and subject to the provisions of this policy, an accidental-death benefit equal to the face amount of the insurance then payable as a death benefit; except [certain exceptions follow which are not applicable to the present case]. No accidental-death benefit will be paid if the death of the insured is the result of self-destruction, whether sane or insane, nor if death is caused or contributed to, directly or indirectly, or wholly or partially, by disease, or by bodily or mental infirmity, nor if death is the result of bodily injuries sustained while participating in aviation or aeronautics, or while the insured is in military or naval service in time of war, nor if death results directly or indirectly from any violation of law by the insured. . . In the event of the death of the insured within one year from the date of this policy, when such death is the result of immorality or of disease contracted prior to the date of this policy, or from resisting law or legal authorities by the insured, or from the commission of a felony by the insured, or is the result of or caused by insanity, or of suicide whether sane or insane, there shall be no liability whatever under this policy, except return of the premiums paid."

The plaintiff testified that an agent of the defendant, Mr. Brazzeal, stated that the company was going to make a settlement of $212, but that it didn't have to pay that; and that he stated to her: "You haven't been in here long enough to receive that amount." Also, that the agent stated the insured was killed in self-defense. The testimony of the agent was to the effect that the company denied liability, not because the insured had not "been in" long enough, but because the company's investigation showed that the insured was killed by another person in self-defense. Unfortunately the record does not show how long the policy had been in force at the time of the death of the insured. If it had been in force over a year, the company would have been liable for the face amount of the policy, no matter how the insured was killed. So, if the policy was a year old when the insured died, it would have been a question for the jury whether the company in good faith disputed liability for the face value of the policy. If the policy was less than a year old, there was no evidence showing the dispute to have been in bad faith. If the policy was a year old, and the jury found that the company denied liability for the face value of the policy in bad faith, a further finding was demanded that the company was liable for the face value of the policy and that the sum due thereunder was due in any event, in which case the plaintiff was not required to return the money as a prerequisite to her suit for the double indemnity, since the payment to her of the face amount of the policy was in law the payment of an undisputed and liquidated liability, and constituted no consideration for the settlement of the claim for double indemnity; otherwise if there was a bona fide dispute as to the liability for the face amount of the policy and the double indemnity. See Pan American Life Insurance Co. v.Bagley, 55 Ga. App. 610 (191 S.E. 144). In my opinion the appellate division of the court erred in rendering a final judgment in favor of the insurance company.