Adams v. Inter-Ocean Casualty Co.

Sutton, J. (After stating the foregoing facts.) The following is the opinion of my two brethren of the court, to which I do not agree, as will later appear from my dissenting opinion which appears. The sum and substance of the petition is that the plaintiff had paid continuously on his policy for ten years, and had earned the right to a paid-up policy, which provided for disability benefits and a death benefit; that the insurance company had repudiated the entire contract by erroneously contending that it had lapsed; and that the repudiation was a complete anticipatory one, as well as a mere failure to pay a past claim. The insurance company repudiated the contract, according to the petition, by showing an intention not to be bound thereby. It makes no difference how-such an intention is manifested, if it is sufficiently established. If in this case the plaintiff can prove that the insurance eompanywrongfully repudiated what he contended was a paid-up contract,, and demanded more premiums, the repudiation would be proved1 just as effectively as if he had proved the company had refused to-accept further premiums on a binding contract calling for the payment of premiums. The mere fact that the plaintiff could have-sued on the policy for the past disability is no reason why he could not accept the repudiation of the whole contract as a breach, and sue .to recover the premiums paid. Bankers Health & Life Insurance Co. v. James, 177 Ga. 520 (170 S. E. 357). Under the-allegations of the petition, the repudiation was more than a mere-refusal to pay a benefit claim. Here the company gave notice that-it would not only not pay a past disability claim, but stated it would not pay any future claim, which included the death benefit.. It is true that the plaintiff was not obliged to accept the breach and' sue for the premiums. He could have sued on the policy while hewa.‘ alive, for every benefit accruing to him under it, if it was= paid up as he alleged, and his beneficiary or his estate could have-sued after his death for the death benefit. He could elect his-remedy. The eases cited by the defendant are not in point, and' refer to facts showing a mere refusal to pay or facts failing to-show a repudiation of the entire contract. The plaintiff’s pleading; *15 of the letters which he contends show a repudiation is not to be construed as an admission that the contents of the letters are true. It was not necessary for him to plead his evidence in the first place, and the pleading of it will not preclude him from proving that the contention stated therein, namely, that his policy had lapsed, was not true. The court erred in sustaining the general demurrer and in dismissing the action. Judgment reversed. Stephens, P. J., and Felton, J., concur.