5 Ga. App. 708 | Ga. Ct. App. | 1909
Lead Opinion
William T. Fair sued the Metropolitan Life Insurance Company, in a justice’s court, on a life-insurance policy issued by the company on the life of his wife, Sarah B. Fair. The jury in the justice’s court found a verdict in favor of the plaintiff, and on certiorari to the superior court the verdict was set aside and a new trial granted. This is the second grant of a new trial by the superior court on certiorari in this case, the first grant having been affirmed by this court (Fair v. Metropolitan Life Insurance Co., 2 Ga. App. 376 (58 S. E. 492), the affirmance being based on the general rule, that the first grant of a new trial on certiorari will not be interfered with unless the verdict is absolutely demanded by the evidence. The case should now be finally disposed of on the merits.
The insured, on October 27, 1904, made a signed application for insurance on her own life, containing, among other things, the following conditions and warranties: “Said policy shall not take effect unless upon its date and delivery [the] life proposed [to be insured] be alive and in good health.” And, as a part of the policy contract, she made and signed the following answers to questions propounded to her by the medical examiner of the company: “4. Is said life blind, deaf, or dumb, or has it any physical o'r mental defect or infirmity of any kind? No. 5. Name of all physicians who have attended within two years, when, and for what complaint. None.” The policy was issued November 7, 1904, and expressly recited that it was issued subject to the following conditions: “Provided, however, that no obligation is assumed by the company prior (o the date hereof, nor unless on said date the insured is alive and in sound health. . . First. This policy is issued upon an application which omits the warranty usually •contained in applications, and contains the entire agreement' between the company and the insured and' the holder and owner hereof. Its terms can not be changed, or its conditions varied, except by a written agreement signed by the President or Secretary of the Company. Therefore agents (which terms includes superintendents and assistant superintendents) are not authorized and have no power to make, alter, or discharge contracts, waive forfeitures,” etc. “ Second. Unless otherwise stated in the blank space- below in the waiver signed by the Secretary, this policy is void if the insured before its date has been . . attended by
The proofs of death contained the following admissions by the-claimant, William T. Fair: “Date of death? Tear 1905, August 25th. Cause of death? See doctor’s certifícate. . . For how long was deceased confined to house and prevented from attending-to business by last sickness? lias complained of rheumatism for about two years. . . What sickness previous to the last one has. deceased ever had; give full particulars of each sickness, with dates and duration of each'? Had rheumatism about two years ago.” The statement of the attending physician, being a part of*” the proofs of death, contained the following: “Cause of death?' 1. Chief or primary, bronchitis. 2. Contributing or secondary,, rheumatism. . . Was deceased afflicted with any infirmity, deformity, or chronic disease? If so, please specify. Kheumatism.”
On the trial the claimant, now plaintiff in error, testified as follows: “She lived ten months after taking out this policy. For about two years before she died she had never walked a step. She hadn’t been in good health for about two years before she died;, was just skin and bones. . . She had rheumatism that caused her legs to draw up, and she did not look to be in good health. She-could not walk, and had not walked for about two years. . ; She could sit in a chair all right. The upper part of her body was not affected, and the only part of her body she could not use. freely was her legs. . . She had not been in good health for two years, and did not look like she was in good health.” The attending physician testified as follows: “Kheumatism is a serious, physical infirmity, and the person with rheumatism is not in sound health. Kheumatism tends to shorten the life of any one-having it; and if it affects the heart, it produces death. In case of any other illness more serious, it is liable to produce complications and make the illness more serious. If I had known she had rheumatism, I would not have considered her in good health,, and would not have approved her application.”
From the foregoing statement of the evidence, which was in no w-ise controverted, it is clearly shown that the insured, when she made her application for the policy, when she made her answers-, to the questions propounded as to the state of her health, and when.
In support of an -affirmance of the judgment granting a new trial, tire learned attorney for the defendant in error rolles upon the case of Thornton v. Travelers Insurance Co., 116 Ga. 121 (42 S. E. 287, 94 Am. St. R. 99). The Thornton case, supra, is authority for the position of counsel; but it is in direct conflict with the decisions of the Supreme Court in the cases of Mechanics In
The question of waiver being the only material issue in the ■case, ‘ and the evidence being sufficient to authorize the finding that there was in fact such waiver as would operate as an estoppel, the court erred in sustaining the certiorari and granting a new trial. The other two assignments of error become wholly immaterial in view of the above ruling on the controlling question in the case. Judgment reversed.
Rehearing
ON REHEARING.
It appears that this court, in the opinion heretofore rendered,
We think the ruling of the justice’s court in rejecting this part of the proof of death, offered as evidence by the defendant, was-error. Besides the express stipulation in the policy, that any statement made in the proof of death should be evidence in behalf of the company, the plaintiff, in making the proof required by the policy, incorporated therein this statement of Dr. Miller, and expressly agreed that it should be considered as a part of the proof, and he had called upon the company to produce this proof of death, to be used as evidence on the trial, and had in fact used that portion of the proof of death which contained a statement of facts beneficial to his claim, and he could not be heard to object to other portions of the proof of death, which the defendant desired to introduce in its behalf. The entire proof of death was clearly' admissible; and the exclusion of that portion which was offered by the defendant, containing the statement of Dr. Miller relating to the physical condition of the insured, was. harmful error.
The defendant relied upon the' breach of two separate and distinct conditions and warranties: first, that the insured stated in .her application for the policy that she was in sound health and without physical or mental defect or infirmity of an)’- kind;.
“Where an-applicant for life-insurance covenants in his application that the statements made to the medical examiner are true, .and these statements are made a part of the contract of insurance and form the basis of such contract, any variation in any of them, which is material, whereby the nature or extent or character of the risk' is changed, will avoid the policy, whether the statement was made in good faith or wilfully or fraudulently.” Supreme Conclave Knights of Damon v. Wood, 120 Ga. 328 (47 S. E. 940).
For the foregoing -reasons we think the judgment of the superior -court on certiorari, granting a new trial, should be affirmed, instead of .reversed; and 'it is ordered that a judgment of affirmance be .substituted for .the judgment of reversal heretofore ■rendered. Judgment affirmed.