Opinion
43197.
ARGUED NOVEMBER 7, 1967.
DECIDED NOVEMBER 14, 1967.
Action on insurance policy. DeKalb Civil and Criminal court. Before Judge Mitchell.
Northcutt Edwards, Ken Doss, W. S. Northcutt, for appellant.
Nall, Miller, Cadenhead Dennis, Lynn A. Downey, for appellee.
Where allegations of the petition in a suit on an insurance policy failed to show coverage, a general demurrer was properly sustained.
ARGUED NOVEMBER 7, 1967 — DECIDED NOVEMBER 14, 1967.
John McCown brought suit against Safeco Insurance Company to recover for medical payments alleged to be due under a policy issued to his wife, on account of injuries received by his daughter when she collided with an automobile while riding a motorcycle. A copy of the policy is attached to the petition as amended. It provides for the payment of "all reasonable expenses incurred within one year from the date of the accident for necessary medical, dental, surgical, X-Ray, ambulance, hospital, professional nursing and funeral services . . . to or for the named insured and each relative who sustained bodily injury, sickness or disease, including death resulting therefrom, . . . caused by accident . . . through being struck by an automobile," the liability being limited, however, to the sum of $1,000 as to each person who sustained bodily injury in any one accident. "Named insured" is defined by the policy to mean "the individual named in the declarations and also includes his spouse, if a resident of the same household," and "relative" is defined to mean "a relative of the named insured who is a resident of the same household."
Plaintiff alleges that Roberta McCown, who was injured, is his daughter, as well as the daughter of Mrs. Edna McCown, the named insured. He does not allege her age, or whether she is a resident of his household or that of his wife. He simply alleges that he has incurred medical and hospital expenses on account of the daughter's injury amounting to a total of $3,212.06, which the defendant has failed and refused to pay.
The policy further provides that "in the event of an accident, occurrence or loss, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and names and addresses of the insured and of available witnesses shall be given by or for the insured to Safeco or any of its authorized agents as soon as practicable," and that "as soon as practicable the injured person or someone on his behalf shall give to Safeco written proof of claim, under oath if required. . ." And finally, it is provided that "no action shall lie against Safeco unless, as a condition precedent thereto, the insured or his legal representative has fully complied with all the terms of the policy."
There are no allegations as to the giving of notice or the filing of any proof of claim in accordance with the policy requirements.
From the sustaining of a general demurrer plaintiff appeals.
The judgment appealed from having been entered prior to the effective date of the Civil Practice Act, its provisions are not applied in determining the issues on appeal. Abercrombie v. Ledbetter-Johnson Co., 116 Ga. App. 376 ( 157 S.E.2d 493). Construing the petition against the plaintiff, as we must on general demurrer, it fails to allege coverage. Since it is not alleged that the daughter was a resident of the insured's household we must assume that she was not, for "the absence of an allegation of a material fact means the non-existence of such fact. Hulsey v. Interstate Life c. Ins. Co., 207 Ga. 167 ( 60 S.E.2d 353); Chalverus v. Wilson Mfg. Co., 212 Ga. 612 (1) ( 94 S.E.2d 736)." Rives v. Atlanta Newspapers, Inc., 220 Ga. 485, 486 ( 139 S.E.2d 395). Under the policy provisions coverage existed only if the injured relative was a resident of the insured's household. "On demurrer, not only must a petition be construed most strongly against the pleader [citation]; but the court, in passing on 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 must be alleged; that is, he must sufficiently allege every fact which he would be required to prove in order to recover." Gulf Life Ins. Co. v. Davis, 52 Ga. App. 464, 466 ( 183 S.E. 640). Accord: Guaranty Life Ins. Co. v. Graham, 58 Ga. App. 767 ( 199 S.E. 829). It is elemental that the allegations of the petition must show coverage under the policy. Newman v. Benefit Assn. of Railway Employees, 173 Ga. 881 ( 162 S.E. 122); Pennsylvania Cas. Co. v. Pund, 72 Ga. App. 49 ( 32 S.E.2d 925). The court cannot supply these deficiencies. Ford Motor Co. v. Williams, 219 Ga. 505 ( 134 S.E.2d 32).
While the policy also provides as a condition precedent to an action against the company that all requirements of the policy must have been complied with, and there is no allegation that any written notice of the accident was given or that any proof of claim was made, there is attached as an exhibit to the petition a copy of a letter from the company addressed to plaintiff's counsel declining payment of the claim on the ground that an investigation of the matter had revealed that "your client was not a resident of our insured's household and therefore would not qualify as an insured under our policy." This amounted to a waiver of the notice and proof of claim requirements. Whitmire v. Canal Ins. Co., 102 Ga. App. 611, 617 (4) ( 117 S.E.2d 348).
Judgment affirmed. Felton, C. J., and Hall, J., concur.