Opinion
28161.
DECIDED APRIL 18, 1940. REHEARING DENIED MAY 31, 1940.
Complaint on life policy; from Fulton civil court — appellate division. October 20, 1939.
McElreath, Scott, Duckworth DuVall, for plaintiff in error.
Thomas G. Lewis, contra.
Cause of action to recover on life-insurance policy was alleged.
DECIDED APRIL 18, 1940. REHEARING DENIED MAY 31, 1940.
STATEMENT OF FACTS BY SUTTON, J.
Frances Johnson brought suit against the Industrial Life and Health Insurance Company, to recover $51.75 plus 25 per cent. penalty and attorney's fees, under a policy issued to her deceased husband, Frank Johnson, and in which she was named beneficiary. The petition alleged that the policy provided for the payment of one fourth of the death benefit of $207 to her, as beneficiary, upon the death of the insured within six months after the issuance of the policy; that he died on January 7, 1939; that due proof of the death was made to the defendant; that all the terms and conditions of the policy had been fully complied with by the plaintiff, but the defendant has failed and refused to make payment to plaintiff of the amount due under the policy, although demand has been made therefor; that on January 10, 1939, she went to the office of the defendant on Alabama Street in the City of Atlanta, to deliver proof of death of the insured, at which time Rufus Pritchett, manager of the defendant company, demanded of the plaintiff the premium-receipt book or record of all payments made by the insured on the policy sued on, the said policy, and all records in plaintiff's possession in reference to said policy contract, which were then delivered to said agent and manager of the defendant, acting in the scope of his authority for and in behalf of the defendant, and which are now in its possession; that Pritchett, acting within the scope of his authority, then and there presented to the plaintiff some sort of release or receipt, and instructed her to sign the same, which release or receipt specified the sum of $3.30, and which amount was then paid to her; that this was fraudulently done to deprive plaintiff of the death benefit specified in said policy, which was and is a just claim of plaintiff against the defendant under the terms and provisions of said policy, which act was done by said agent and manager of the defendant, with the aid of others present, who were agents of defendant but whose names plaintiff does not know; that whatever was said about the said amount of $3.30 being all plaintiff was entitled to receive was said by Pritchett after plaintiff had been persuaded to sign the alleged receipt; that she then and there stated to him that she was not satisfied and did not understand it; that at the time she went to the office of the defendant she was in a distressed state of mind, her husband having died and then being an unburied corpse awaiting funeral services, and the defendant through its said agents took advantage of her confused state of mind to persuade and induce her to sign said receipt; that she would not have signed the receipt if she had been informed that amount named therein was being paid to her in an effort to make a full and final settlement of her claim; that she is so limited in education that she can not read and understand the meaning and effect of such written instruments; that when Pritchett presented the receipt or release to her for her signature, she trusted and confided in him for advice, but would not have signed the same if it had been explained to her or if she could have read and understood it herself; that as soon as she discovered that she had been deceived and misled into signing said receipt or release she proceeded to return the sum of $3.30 to the defendant, and now tenders the same to the defendant and makes said tender continuous, the amount not having been accepted by her from the defendant as a full and final settlement of her claim under the policy, but having been accepted by her through and by a misunderstanding as to what it was paid to her for, or why it was paid to her; that she is entitled to recover the principal sum of $51.75 and 25 per cent. thereof as a penalty, or $12.52, together with a reasonable amount as attorney's fees because of the defendant's failure to comply with the terms of the policy and to make payment of the amount due thereunder, and as provided by the Code, § 56-706. Judgment was prayed for $64.27 plus a reasonable amount as attorney's fees, and costs.
The defendant made a motion to dismiss the action, on the ground that the petition failed to set forth a cause of action. The motion was sustained. On appeal, this judgment was reversed by the appellate division of the trial court, and the defendant excepted.
"Suppression of a fact material to be known, and which the party is under an obligation to communicate, constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case." Code, § 37-704. Where, as shown by the allegations of the petition in the present case, the plaintiff, a woman, so limited in education that she could not read and understand the meaning and effect of the instrument which she signed, surrendered, upon request of the manager of the insurance company, the policy in which she was named beneficiary, the premium-receipt book and record of payments on the policy sued on, and had presented to her for signature, which she did sign, a receipt or release from liability in consideration of the payment to her of $3.30, whereas the policy provided for payment of $51.75 upon death of the insured, it was a fraud upon the plaintiff, under the circumstances, not to disclose to her the contents of the paper which the defendant, through its manager, requested her to sign. The petition showing by other allegations that the plaintiff made due proof of the death of the insured, that payment had been refused, and that upon being informed, only after she had signed the release, that the sum of $3.30 was all she was entitled to recover, she expressed her dissatisfaction, stated that she did not understand the transaction which she was fraudulently induced to enter into, and that upon discovering that she had been deceived and misled she tendered back the amount she had received and made the offer a continuous one, a cause of action was set forth for recovery of the amount of the policy, and of damages as provided by the Code, § 56-706, and attorney's fees. Bankers Health c. Ins. Co. v. Griffeth, 59 Ga. App. 740 (2), 742 ( 1 S.E.2d, 771). The appellate division of the civil court did not err in reversing the judgment of the trial judge sustaining the defendant's motion to dismiss the action on the ground that no cause of action was set forth.
Judgment affirmed. Stephens, P. J., and Felton, J., concur.