Life Casualty-Insurance Co., Tennessee v. Marks , 72 Ga. App. 640 ( 1945 )

The petition failed to show any right on the part of the plaintiff to bring or maintain the present action, and the court erred in overruling the defendant's general demurrer.

DECIDED JUNE 28, 1945. Mrs. Luther C. Marks brought a suit against Life Casualty Company of Tennessee. The petition as finally amended alleged substantially that the plaintiff's husband made application to the defendant company for life insurance in the sum of $1000, and that the company, through its agent, issued to him its binding receipt for the insurance premium of $6,58 paid by him at the time of making the application, a copy being attached to the petition, and reads as follows: "Received from Luther C. Marks (the applicant) 6.58 dollars, on account of application made this date to Life Casualty Insurance Company of Tennessee. If this sum is equal to the full first premium on the policy applied for and if such application is approved at the company's home office, for the plan and amount of insurance therein applied for, then the insurance applied for shall be in force from this date, but no insurance shall be in force under said application unless and until a policy has been issued and delivered and the full first premium stipulated in the policy has actually been paid to and accepted by the company during the lifetime of the applicant. The above sum shall be refunded if the application is declined or if a policy is issued other than as applied for and not accepted by the applicant. Appointment for medical examination April 10, 1944. Date, Bremen, Ga. Between the hours of 10 and 11 p. m. Atl. district, Atlanta, Ga. [On left-hand margin] If policy is not delivered to you within 60 days from date, this receipt should be presented at the district office, or the home office in Nashville, for refund. [On right-hand margin] Odd, Und. Dept. May 9, 1944."

It was alleged that the premium was duly paid to and accepted by the defendant insurance company, and that the aforesaid receipt was duly issued by its agent in accordance with the custom and forms provided by said company and which was a part of said application; and that the application was accepted and approved by the company for the amount of insurance applied for and according to the terms and plan of the application, and was so set up on the records of the company; but that no insurance policy was delivered to the applicant, as he was injured in an automobile accident shortly after making the application and died on May 3, 1944; that the insurance was in effect by virtue of and under the binding receipt issued to the applicant, from April 10, 1944; and "that the said Luther C. Marks died on the 3d day of May, 1944; therefore, said defendant become indebted to plaintiff in the sum of $1000 on said date."

The defendant filed a general demurrer to the petition, to the effect (1) that no cause of action was set forth; (2) that the alleged contract of insurance as evidenced by the receipt was not in writing as required by our statutes; (3) that the petition fails to show any right of recovery in the plaintiff. The defendant also filed a special demurrer, which is not now relied upon. The court overruled the demurrers, and the defendant excepted. The point raised by the general demurrer, that the plaintiff does not show any right to bring or maintain the present suit, is well taken and is controlling. The suit is brought by the plaintiff in her individual capacity and she fails to show any right on her part as such to bring or maintain the action. The only connection that she shows with the subject-matter of the suit is that the applicant for the insurance, Luther C. Marks, was her husband. She does not allege or claim that she was the beneficiary of the insurance for which he had applied. "Ordinarily a policy of insurance upon the life of a married man, where no person is named therein as the beneficiary, is not payable to his wife, but is payable to the executor or administrator of his estate." Pate v.Insurance Co. of Virginia, 19 Ga. App. 597 (91 S.E. 883). The title to personal property, including chooses in action, upon the death of the owner, passes to his personal representative, and not to his heirs at law. It was held in Hill v. Maffett,3 Ga. App. 89 (59 S.E. 325), and the same principle reaffirmed in Moore v. Cox, 54 Ga. App. 207 (187 S.E. 609), that, "Upon the death of a person intestate, choses in action in his favor pass to his administrator; and his heirs at law can take no more than an equitable interest therein, except through the intermediation of the administrator. The heirs, although all of them are sui juris and of full age, can not maintain an action at law upon a chose in action in favor of the intestate, notwithstanding there is no administrator and all debts due by the intestate have been paid." Also, see Bennett v. Bottoms,64 Ga. App. 456 (13 S.E.2d 519).

On demurrer, not only must the petition be construed most strongly against the pleader, but the court, in passing upon the sufficiency of the allegations to make out a case, should keep in mind the principle that every material fact which goes to constitute the plaintiff's cause of action or right to recover must be alleged; that is, he must sufficiently allege every fact which he will be required to prove in order to recover. Groover v. Simmons, 163 Ga. 778, 780 (137 S.E. 237); Guaranty LifeIns. Co. v. Graham, 58 Ga. App. 767 (199 S.E. 829). The petition failed to show any right on the part of the plaintiff to bring or maintain the present action, and the court erred in overruling the general demurrer on this ground.

Judgment reversed. Felton and Parker, JJ., concur.