Pennsylvania Casualty Co. v. Pund

Court of Appeals of Georgia

Pennsylvania Casualty Co. v. Pund

32 S.E.2d 925, 72 Ga. App. 49, 1945 Ga. App. LEXIS 487

CourtCourt of Appeals of Georgia

DecidedJanuary 25, 1945

Docket30738.

StatusPublished

Cited by1 cases

This text of 32 S.E.2d 925 (Pennsylvania Casualty Co. v. Pund) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pennsylvania Casualty Co. v. Pund, 32 S.E.2d 925, 72 Ga. App. 49, 1945 Ga. App. LEXIS 487 (Ga. Ct. App. 1945).

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Opinion

Parker, J.

1. The petition, even as amended, fails to allege any loss covered by the policy sued on, copy of which is made a part of the petition by exhibit.

2. The petition, as amended, alleges the surgical removal of “the lumbar fifth vertebra, a part of the spine or spinal cord; ” whereas the coverage afforded by the policy (as to spine or spinal-cord surgery) is limited to “removal of fractured vertebra (processes excepted),” and “removal of processes (one or more).” (Italics ours.) - The policy provisions are plain and unambiguous and cannot be construed to cover the loss alleged in the petition. Slaten v. Travelers Ins. Co., 197 Ga. 1, 8 (28 S. E. 2d, 1); Federal Life Ins. Co. v. Bolinger, 100 Ind. App. 222, (193 N. E. 681), and cit.

3. The court erred in overruling the defendant’s motion to dismiss in the nature of a general demurrer, the plaintiff’s amendment having failed to cure the variance between the petition and the attached exhibit.

4. Accordingly, the subsequent trial and judgment in favor of the plaintiff, rendered by the court without a jury, were nugatory.

Judgment reversed.

Sutton, P. J., and Felton, J., concur.

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Parker, J.

1. The petition, even as amended, fails to allege any loss covered by the policy sued on, copy of which is made a part of the petition by exhibit.

2. The petition, as amended, alleges the surgical removal of “the lumbar fifth vertebra, a part of the spine or spinal cord; ” whereas the coverage afforded by the policy (as to spine or spinal-cord surgery) is limited to “removal of fractured vertebra (processes excepted),” and “removal of processes (one or more).” (Italics ours.) - The policy provisions are plain and unambiguous and cannot be construed to cover the loss alleged in the petition. Slaten v. Travelers Ins. Co., 197 Ga. 1, 8 (28 S. E. 2d, 1); Federal Life Ins. Co. v. Bolinger, 100 Ind. App. 222, (193 N. E. 681), and cit.

3. The court erred in overruling the defendant’s motion to dismiss in the nature of a general demurrer, the plaintiff’s amendment having failed to cure the variance between the petition and the attached exhibit.

4. Accordingly, the subsequent trial and judgment in favor of the plaintiff, rendered by the court without a jury, were nugatory.

Judgment reversed.

Sutton, P. J., and Felton, J., concur.

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Bluebook (online)

32 S.E.2d 925, 72 Ga. App. 49, 1945 Ga. App. LEXIS 487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennsylvania-casualty-co-v-pund-gactapp-1945.

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