National Life & Accident Insurance v. Hamby

59 S.E.2d 278, 81 Ga. App. 463, 1950 Ga. App. LEXIS 917

• Court: Court of Appeals of Georgia
• Decided: April 28, 1950
• Docket: 32881
• Status: Published

Opinion

Worrill, J.

1. A petition purporting to set forth a cause of action against an insurance company on a contract of insurance insuring against loss of life and against certain other specified injuries or losses, but which does not allege that the company accepted the risk and assented to the terms of the contract (Maddox v. Life & Casualty Ins. Co., 79 Ga. App. 164, 170, 53 S. E. 2d, 235), or that the agent taking the application and accepting the advance payment of premiums had authority to bind the company (Home Insurance Co. v. Fain, 46 Ga. App. 632, 167 S. E. 890), was subject to general demurrer and the trial court erred in overruling the demurrer thereto and in refusing to dismiss the petition.

2. Insurance is a matter of contract and the consent of the parties to all the terms being essential to complete the contract, the failure of the plaintiff (omitting conclusions not supported by the facts pleaded) to allege facts showing an assent to the terms by the defendant, or that the risk was accepted or the policy issued by the defendant was fatally defective, and the trial court should have sustained the general demurrer thereto. Code, § 20-108.

Decided April 28, 1950.

Judgment reversed.

Sutton, C. J., and Felton, J., concur. William F. Buchanan, Mary J. Nelson, for plaintiff in error. Frank A. Bowers, contra.