Opinion
39772.
DECIDED NOVEMBER 8, 1962. REHEARING DENIED NOVEMBER 29, 1962.
Action on insurance policies. Albany City Court. Before Judge Jones.
J. D. Watkins, Ruffin Watkins, J. M. Hinton, Jr., for plaintiff in error.
D.C. Campbell, Jr., H. G. Rawls, contra.
The time when a policy of life insurance shall become effective is an essential element of the contract; and if no time for the commencement of the risk is fixed in the contract of insurance, the provisions of Code Ann. § 56-2429 are to be read into the policy as a term thereof, and the policy runs from midday of the date thereof, as provided in said Code section.
DECIDED NOVEMBER 8, 1962 — REHEARING DENIED NOVEMBER 29, 1962.
Mary Hannah Milledge filed suit in the City Court of Albany against Pilgrim Health Life Insurance Company, alleging that she was the beneficiary in two policies of life insurance issued by the company on the life of her son, Willie F. Milledge, who died on November 5, 1961, and seeking to recover the face amount of the policies plus the statutory penalty and attorneys' fees for bad faith. It was alleged in the petition that the applications for said policies were made on October 26, 1961, the required premium paid on October 27, 1961, and the policies issued by the company at its home office on or before November 2, 1961, and submitted to the local agent on or before November 4, 1961, for delivery to the insured. The policies, certain portions of which were attached as exhibits to the petition, were dated November 6, 1961; and the policies were delivered to the plaintiff beneficiary on that date, it being unknown to the company or its agent at the time of the insured's death on the previous day.
The insurance company's general demurrer, which was predicated upon the contention that the proposed insured had died before the effective date of the policies, was overruled and the exception is to that judgment.
A policy of life insurance bearing a given date, and purporting to insure for the future only, cannot be made the basis of an action to recover for a loss occurring on a prior date. Fowler v. Preferred Accident Ins. Co., 100 Ga. 330 (3) ( 28 S.E. 398). The time when an insurance policy shall become effective is an essential element of the contract ( Boswell v. Gulf Life Ins. Co., 197 Ga. 269, 29 S.E.2d 71); and if no time for the commencement of the risk is fixed in the contract of insurance, the provisions of Code Ann. § 56-2429 are to be read into the policy as a term thereof, and the policy runs from midday of the date thereof, as provided in said Code section. Metropolitan Life Ins. Co. v. Thompson, 20 Ga. App. 706 (8) ( 93 S.E. 299).
The policies of insurance sued upon in this case were dated November 6, 1961, and it does not appear from the petition and exhibits attached thereto that any express provisions were incorporated in the policies as to the time of the commencement of the risks insured against. Construing the pleadings most strongly against the plaintiff, it must be presumed for purposes of ruling on the general demurrer that there were no such provisions. Under these circumstances, therefore, the effective date of the policies was by operation of law midday of the date of the policies, that is, November 6, 1961. Accordingly, since the petition affirmatively disclosed that the insured died on November 5, 1961, a date prior to the effective date of the policies, recovery could not be had on said policies by the plaintiff beneficiary and the trial court erred in overruling the general demurrer to the petition.
Judgment reversed. Nichols, P. J., and Frankum, J., concur.