57 Ga. App. 588 | Ga. Ct. App. | 1938
On October 15, 1934, tbe Guaranty Life Insurance Company, hereinafter referred to as the insurer, issued a policy of life insurance to Yivian Pughsley, naming Harry G. Pughsley, her husband, and plaintiff in the present suit, as beneficiary. The application, which was attached to and made a part of the contract, was dated September 14, 1934. On November 6, 1934, the insurer was operated on for a fibroid tumor and died on January 16, 1935, as the result of such condition. One of the questions contained in the application above referred to was as follows: “Do you suffer from any ovarian or uterine disease or menstrual disorder?” To which question the insured answered, “No.” The insurer defended the present- action on the ground that this statement was false, that the insured then and there, and prior thereto, was and had been suffering from an ovarian or uterine disease or menstrual disorder, to wit, fibroid tumor of her uterus. Without setting out the evidence it is sufficient to say that it overwhelmingly and conclusively showed that the representation was false and was material to the risk. “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 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).
The plaintiff contends, however, that the insurer waived the provisions contained in the policy authorizing forfeiture by reason of a false statement made in the application. In this connection it is first insisted that the agent who solicited the policy, and who filled out the application and delivered the same, knew or should have known of this condition of the insured at the time of the
While it is true that where an insurer has knowledge of facts entitling it to treat a policy as no longer in force, and thereafter receives a premium on the policy, it is estopped to take advantage of the forfeiture, it can not treat the policy as avoided for the purpose of defenses in an action to recover for losses after occurring, and at the same time treat it as valid for the purpose of earning and receiving the premium. 14 R. C. L. 1090, § 367; Williams v. Empire Mutual Annuity &c. Ins. Co., 8 Ga. App. 303 (68 S. E. 1082); German American Mutual Life Asso. v. Farley, 102 Ga. 720 (29 S. E. 615); Sovereign Camp Woodmen of the World v. Bowman, 40 Ga. App. 536 (159 S. E. 436). The evidence in the present case is not sufficient to bring the case within the operation of the above ruling. It does not appear from the evidence that the insurer, through its examiner, had actual knowledge that the answer of the insured in her application that she did not “suffer from any ovarian or uterine disease or menstrual disorder,” was false. At best it was merely constructive notice of facts authorizing it to forfeit the policy. It was not such knowledge that would effect a waiver of the conditions of the policy.
Judgment reversed.