Opinion
41149.
ARGUED FEBRUARY 3, 1965.
DECIDED JUNE 21, 1965. REHEARING DENIED JULY 22, 1965.
Action on insurance policy. Louisville City Court. Before Judge Cannon.
Abbot Abbot, Fulcher, Fulcher, Hagler Harper, J. Walker Harper, for plaintiff in error.
Marshall L. Fountain, contra.
The petition failed to state a cause of action upon an insurance contract in that it was not based upon a written binder, or agreement to insure, or upon an insurance policy in writing, and the trial court erred in overruling defendant's general demurrer. (The Georgia Insurance Code, Ga. L. 1960, pp. 289, 667, is not applicable to this case).
ARGUED FEBRUARY 3, 1965 — DECIDED JUNE 21, 1965 — REHEARING DENIED JULY 22, 1965.
Ralph Westbrook brought this action against Nationwide Insurance Company, and alleged that "On November 15, 1960, as shown by Exhibit `A' hereto attached, defendant agreed to insure for petitioner" a certain described motor truck. Exhibit "A" is a letter dated November 15, 1960, from plaintiff to defendant as follows: "Pursuant to our conversation, please insure [the described truck] . . . for Fire, Theft, Combined Additional Coverage, Deductible Collision Insurance and Liability Insurance in amount of $100,000.00, $200,000.00 and $50,000.00 . . . Attached is our check for 20% of premium in amount of $220.00. Schedule the balance in 12 monthly payments." Defendant never delivered a policy to plaintiff, none is attached to the petition, nor does the petition allege execution of a policy. On November 16, 1960, while operating the truck, plaintiff's employee was involved in two collisions with other vehicles. Defendant refused to defend actions brought against plaintiff as a result of these collisions, and default judgments were rendered, which defendant refused to satisfy. Plaintiff seeks to recover damages because he was thus subjected to legal liability and seeks damages for bad faith, and attorney's fees.
Defendant filed its answer and general and special demurrers to the petition. The trial court overruled all defendant's demurrers.
Trial of the case thereafter resulted in a verdict and judgment for plaintiff.
Defendant excepts to judgments of the trial court overruling defendant's demurrers, denying defendant's motion for judgment notwithstanding the verdict and denying defendant's motion for new trial.
1. As against general demurrer pleadings must be construed most strongly against the pleader. Hulsey v. Interstate Life c. Ins. Co., 207 Ga. 167, 169 ( 60 S.E.2d 353); Tarver v. Savannah Beach, Tybee Island, 96 Ga. App. 491, 494 ( 100 S.E.2d 616).
If the petition together with Exhibit "A" is so construed, the alleged "agreement" as shown by Exhibit "A" is no agreement at all but is at most a mere application for insurance. While it is doubtful whether the vague and indefinite application for insurance is sufficient to constitute an offer, yet even if it is, the consummation of the insurance contract by valid acceptance is essential to the cause of action that plaintiff attempts to allege. "Insurance is a matter of contract . . . [An insurance contract] is consummated upon the unconditional written acceptance of the application for insurance by the company to which such application is made . . . So long as the application is not acted upon by the insurance company, of course, no contract has been consummated." Maddox v. Life Cas. Ins. Co., 79 Ga. App. 164, 170 ( 53 S.E.2d 235).
(We are not concerned here with the validity of an oral binder under the Georgia Insurance Code, Ga. L. 1960, pp. 289, 667, because the purported agreement to insure was made prior to January 1, 1961, the effective date of the Act).
Even if it were possible to construe the petition as showing an oral agreement to insure, that would still be insufficient to support the action, because under judicial construction of former Code § 56-213 which is applicable to this case, an oral binder to insure is unenforceable. Georgia Casualty c. Co. v. Hardrick, 211 Ga. 709, 712 (3) ( 88 S.E.2d 394). See also: New York Life Ins. Co. v. Babcock, 104 Ga. 67 ( 30 S.E. 273, 42 LRA 88, 69 ASR 134); Todd v. German American Ins. Co., 2 Ga. App. 789, 793 (1) ( 59 S.E. 94); New Jersey Ins. Co. v. Rowell, 33 Ga. App. 552, 556 ( 126 S.E. 892).
Thus the petition here, in order to allege a cause of action, would have had to set forth a written binder, or agreement to insure, or an insurance policy in writing. As the petition failed to allege any of these things, it stated no cause of action.
The trial court erred in overruling defendant's general demurrer, and all further proceedings in the case were nugatory.
Judgment reversed. Frankum and Hall, JJ., concur.