50 Ga. App. 543 | Ga. Ct. App. | 1935
Lead Opinion
This was a suit upon a life-insurance policy, in which verdict and judgment were rendered for the plaintiff, and the defendant assigned error on the overruling of its motion for a new trial. The application for the insurance was made on September 6, 1932. It was not incorporated in and made a part of the policy actually issued as a result of the application. At the time of the application the premium for four weeks was paid in advance. In the receipt for this premium, signed by the agent taking the application, there was this proviso: “If the application is accepted and a policy issued, this sum will be applied toward payment of the premium thereon. If application is rejected the amount will be returned to the applicant. No obligation is incurred by said company by reason of this deposit, unless and until a policy is issued upon said application, and unless at the date of delivery of said policy the life proposed is alive and in sound health, except
It is undisputed that the defendant’s agent had notice of the physical condition of the insured at the time of the taking of the application. No medical examination was required, and the insured was apparently a good risk. In the case of Life & Casualty
It is unquestionably true that where the application itself does not limit the authority of the agent, or where the application is not attached to and made a part of the policy, actual notice to the agent of the applicant’s condition will be notice to the company, and where a policy is issued and delivered the insurer will be held, in the absence of fraud, to have waived a condition avoiding the policy in the event of the ill health of the assured at the time of the delivery. Metropolitan Life Ins. Co. v. Hale, 177 Ga. 632 (170 S. E. 875); Metropolitan Life Ins. Co. v. McAleer, 43 Ga. App. 669 (159 S. E. 906). Knowledge of material facts on the part of an agent of a company under such circumstances is notice to the company. In Priest v. Kansas City Life Insurance Co., 116 Kan. 421 (227 Pac. 538), it was said: “The effect of a clause that a life-insurance policy shall not take effect unless the applicant is in good health at the time of its delivery is to protect the company against a new element of risk arising through a change in the applicant’s condition after investigation is made.” In National Life & Accident Insurance Co. v. Martin, 35 Ga. App. 1 (132 S. E. 120), it was said: “Where the assured represents in good faith that he is in sound health, and on the strength of such repre
The credibility of witnesses is peculiarly within the province of the jury, and the jury were warranted in finding from the plain testimony of plaintiff and another witness (Mrs. Dempsey) that the applicant was in sound health on the day of application, and in the same condition of health on the day of delivery of the policy. The alleged unsound health was a nervous condition, caused by an enlarged uterus, which condition did not cause the death of the insured; but, according to medical testimony, was a contributing cause to the pneumonia which did cause death. It appears also, under the terms of the receipt issued by the insurer, that the insured was protected if in sound health on September 6th, whenever the application was approved by the home office, even if death should occur prior to the delivery of the policy. It would be reasonable to say that if liability in the present case attached when the application was approved, dependent alone on the condition of the health of applicant on September 6th, the other provisions in the policy actually issued became nugatory which restricted such liability to a condition existing at a later date, although the application was approved and the policy issued and delivered.
The evidence authorized the verdict for the plaintiff; none of the grounds of the motion for a new trial show cause for a reversal of the judgment; and the court did not err in overruling the motion for a new trial.
Judgment affirmed.
Dissenting Opinion
dissenting. This was a suit brought upon a policy of. life-insurance by the beneficiary named in the policy. The policy contained the following provision: “This policy shall not take effect unless on the date and delivery hereof the insured is alive and in sound health.” (Italics mine.) The plaintiff having alleged'in her petition that the insured was in sound health on