182 Ga. 213 | Ga. | 1936
Lead Opinion
The writ of certiorari was granted by this court to review the decision of the Court of Appeals in this case. 50 Ga. App. 713. The holding of the Court of Appeals, as stated in the single paragraph constituting the syllabus is: “The action was brought in this State on a life-insurance policy applied for and issued in the State of New York, in which State both the insured and the beneficiary lived when the policy was issued. The insurance company denied liability solely on the ground of false answers in the application for insurance, attached to and made a part of the policy, and contended that the law of New York rather than that of this State was applicable. The verdict in favor of the beneficiary was supported by competent evidence; and no error of law appears.” It is not considered necessary that the numerous .assignments of error contained in the petition for certiorari be here set out; for each and every one of them is based on the contention of the insurer that the statutes and decisions of the State of New York, rather than those of Georgia, should determine the effect of alleged false statements made in the application for insurance, .in the trial of the case in the courts of this State. One of the controlling questions in the adjudication now before us is whether the remedial processes applicable in a suit in Georgia shall give way to and be superseded by the laws of New York because the contract was executed in the State of New York and intended there to be performed. Suit was brought upon the contract in the courts of Georgia. The question is whether, as to the remedial features of the action, the lex loci contractus shall prevail over the law of the forum.
In Massachusetts Benefit Life Association v. Robinson, 104 Ga. 256 (8) (30 S. E. 918, 42 L. R. A. 261), it was held: “The materiality of representations made by the insured ip his application, under the laws of Georgia, is a question for the jury to decide. The manner in which this question shall be determined, being a
In Johnson v. Ætna Insurance Co., 123 Ga. 404 (51 S. E. 339, 107 Am. St. R. 92), in which all the Justices concurred except Simmons, C. J., absent, this court ruled that “Limitations in an insurance policy upon the authority of the agent of the company to waive the conditions of the contract of insurance are to be treated as referring to waivers made subsequently to the issuance of the policy. Mechanics Ins. Co. v. Mutual Bldg. Ass’n, 98 Ga. [262] 266, approved and reaffirmed.” In the Ætna case attention was called to the conflict between the rulings in Mechanics Ins. Co. v. Mutual Bldg. Ass’n, 98 Ga. 262, and Thornton v. Travelers Ins. Co., 116 Ga. 121 (42 S. E. 287, 94 Am. St. R. 99). After thorough discus
It is insisted in the present application for certiorari that the contract here involved is governed by the lex loci contractus, and that the insurance contract was avoided by reason of false representations of the insured in his application for insurance, and that under the law it was for the court and not the jury to determine whether the alleged misrepresentations are in fact material. In support of this proposition, counsel rely upon the ruling of the Court of Appeals of New York in Minsker v. John Hancock Mutual Life Insurance Co., 254 N. Y. 333 (173 N. E. 4), in which it was held that “False answers in written application attached to life policy, with respect to medical advice and hospital treatment, as matter of law defeated recovery, though insured gave truthful oral answers.” It must be borne in mind that until January 1, 1907, the courts of New York had decided that if the medical examiner of a life-insurance company was truthfully told by the applicant for a policy of facts which under the terms of a policy would make it void if not noted upon it, the company could not avail itself of the defense that such facts were not stated in the policy, the underlying principle being that it would be a fraud upon the insured to accept pay for a policy which the company through its agent knew was void when delivered. In 1906 the legislature of New York passed the New York statute upon which the decision in Minsker’s case, supra, was based (Laws of 1906, c. 326). This act was doubtless passed for some reason peculiar to the State of New York; for, as said by the Court of Appeals of New York in Minsker’s case, “the statute applies only to life-insurance corporations, and not to other insurance companies or associations.” And the reasons given for the passage of the New York statute are to be seen in Archer v. Equitable Life Assurance Society, 218 N. Y. 18. (112
The validity of a contract made in another State and sought to be enforced in this State is to be determined and controlled by the law of the State of the contract; but as to all remedies to be applied, either in the enforcement of such contract or in defeasance thereof, the law of the forum prevails. In Joice v. Scales, 18 Ga. 725, it was not only held that “As a general principle, the lex loci applies only to the interpretation of contracts, and the remedy on them must be prosecuted according to the laws of the country in which the action is brought,” but the court also held that “This
In the unanimous opinion of this court in Joice v. Scales, 18 Ga., heretofore quoted, it was said: “We may safely assume, as a general principle, that the lex loci applies only to the interpretation
Judgment affirmed.
Dissenting Opinion
dissenting. This action upon a policy of life insurance in the amount of $2000 was brought in the city court of Carrollton by Mrs. Edna K. Yates against John Hancock Mutual Life Insurance Company. Yerdict and judgment were rendered for the plaintiff. Motion for a new trial was made by the insurance company, and overruled. The case was taken to the Court of Appeals, where the judgment of the trial court was affirmed. Motion for a rehearing was denied. The case is now before this court on certiorari. The policy involved was a New York contract, having been applied for, issued, and delivered in the State of New
“The validity, form, and effect of all writings or contracts axe determined by the laws of the place where executed.” Code of 1933, § 102-108. It is not disputed, and it was so held in the opinion of the Court of Appeals, that the law just quoted applies to the interpretation of the contract involved in the present case. But it is contended by the plaintiff and sustained by the Court of Appeals that as to the remedy for enforcing a right under the contract the lex fori, in this case the law of Georgia, should govern. With these abstract principles of law I readily concur; but as to the application of the lex fori in the present case I must respectfully differ. The basis of my dissent is that before there can be an application of the lex fori there must exist an antecedent right which is capable of enforcement by what is termed adjective or remedial law. The lex fori can apply only with reference to remedies. The lex loci contractus applies with reference to substantive rights. Or, as is often stated, “ Substantive law creates, defines, and regulates rights, as
But while recognizing the New York law as controlling the validity of the contract, and recognizing the lack of sirbstantive right in the plaintiff under the New York law, the position taken by the majority seems to be tantamount to saying: No right exists in New York, but we are finding the plaintiff a right in Georgia by resorting to an adjective law which provides that in Georgia a jury may pass upon the materiality of misrepresentations; and if it found that such misrepresentations are not material, the plaintiff will have a right to recover, • notwithstanding that under a proper construction of the policy he would have no right either in New York or in Georgia. It seems to me that such a ruling would be 'illogical and unsupported by reason. The court would be over-leaping settled law in an effort to give a right which otherwise can not be seriously insisted upon. The basis of the view of the majority of the court, of the alleged right of the plaintiff to maintain an action in Georgia in the present case, seems to be the decision in Massachusetts Benefit Life Association v. Robinson, 104 Ga. 256 (supra). It will be found upon examination, however, that the cited case is not authority for the position taken, and that there is nothing in that case contrary to the fundamental requirement that for the application of adjective law there must exist an antecedent right under substantive law.. Quite consistently a defendant may in some case be held to the principle of lex fori while at the same .time being afforded the benefit of lex loci contractus. But the order
It’is stated in the majority opinion that “Georgia has no such law as the New York statute of 1906. By this last enactment and construction of the court of last resort of New York, the courts are to determine the materiality of all representations made by the applicant for life insurance. By the law of Georgia, the jury are to determine the materiality of such statements as may be made by the applicant for life insurance.” It must be remembered that the New York statute was not passed with reference to procedural rights such as are involved in the language just quoted. It was to afford a substantive right to life-insurance companies, by providing that the policy shall contain the entire contract between the parties, thus eliminating any oral statements not reduced to writing and incorporated in the policy. Obviously this is independent of any question whether a jury or the ‘court should pass upon the question of materiality of misrepresentations. It is not, by itself or in connection with the two New York decisions hereinbefore mentioned, a subject-matter of comparison with the law of Georgia that a jury shall, where the evidence is conflicting, pass upon such a question. Being so, I do not think there is involved any question of whether the law of New York may be said to be given extraterritorial effect as to adjective or remedial law. As to a contract executed in another State, it is- provided in the Code of 1933, § 102-108, that “The validity, form, and effect of all writings or contracts are determined by the laws of the place where executed.” The provisions of the New York law above referred to relate to “the validity, form, and effect” of the contract of insurance under consideration, and therefore to such as is comprehended in the Code
But, aside from the reasons above given, I am impelled by other considerations to dissent from the majority opinion. It is provided in the Code, §§ 56-820, 56-821: “Every application for insurance shall be made in the utmost good faith, and the representations contained in such application shall be considered as covenanted to be true by the applicant. Any verbal or written representations of facts by the insured to induce the acceptance of the risk, if material, must be true, or the policy shall be void. If, however, the party shall have no knowledge, but shall state on the representation of others, bona fide, and shall so inform the insurer, the falsity of the information shall not void the policy.”' In § 56-822 it is provided: “A failure to state a material fact, if not done fraudulently, shall not void the contract; but the wilful concealment of such a fact, which would enhance the risk, shall void the policy.” In Phillips v. New York Life Insurance Co., 173 Ga. 135, 138 (159 S. E. 696), it was said: “‘Where an applicant for life insurance wilfully conceals from the insurer the fact of a previous illness, such concealment will avoid the policy if the disease was of such a character as to enhance the risk.’ Ætna Life Insurance Co. v. Conway, 11 Ga. App. 557 (75 S. E. 915). ‘A material representation in an application for life insurance is one that would influence a prudent insurer in determining whether or not to accept the risk, or in fixing the amount of the premium in the event of such acceptance.’ Lee v. Insurance Co., 158 Ga. 517 (123 S. E. 737). It was held in Mutual Life Insurance Co. v. Bolton, 22 Ga. App. 566 (96 S. E. 442): ‘Representations made in an application for insurance which is attached to and made a part of the policy are considered as covenanted to be true by the applicant, and the policy will be voided by any variation which changes the nature, extent, or character of the risk. Any material representa-, tion of facts by the assured, to induce the acceptance of the risk, will void the policy if untrue; and while failure to state a material fact will not void a policy unless such failure be fraudulent, a wilful concealment of such a'fact, which would enhance the risk, will void the policy.’” It is beyond peradventure that, under the evidence, the insured was bound to know of his physical ill health, and that he sought and obtained medical advice, all of which facts were
But it is urged that the wife testified that she was present when the application was taken and signed, and that she heard the insured inform the agent of the company of the fact that he had visited a physician because of indigestion; and it is contended that notice to the agent was notice to the insurance company. In con
The New York statute which vests the insurance company with the right to be free from liability under the circumstances of this case is, therefore, a public act which this State is bound to protect in its judicial determinations. To permit the wife of the insured to introduce oral testimony to negative the written statements made in the application for insurance would be subversive of the principle above discussed. Nor, under the contract, would notice to the agent bind the principal even if it were true that the applicant had told the agent that he had been troubled with indigestion. The insurance law became a part of the contract of insurance, and, as said above, in sec. 58, e. 326, of the law of New York it was provided that the policy shall contain the entire contract. In Minsker v. John Hancock Mutual Life Insurance Co., supra, it was held, in reference to the aforesaid act/ that a recovery would not be permitted on the ground that the medical examiner incorrectly stated the applicant’s answers, or because the insured was unable to read or neglected to read the policy. The agent who took the application likewise had no authority to waive any of the conditions of the policy, and any statement to the agent contrary to those in the written application would not bind the company. As to the limitations of an agent’s power, as decided by this court, see Hutson v. Prudential Insurance Co., 122 Ga. 847 (50 S. E. 1000); Vardeman v. Penn Mutual Ins. Co., 125 Ga. 117 (54 S. E. 66, 5 Ann. Cas. 221); Bank of Commerce v. N. Y. Life Insurance Co., 125 Ga. 552 (54 S. E. 643); Rome Industrial Insurance Co. v. Eidson, 138 Ga. 592 (75 S. E. 657), and cit.; Reliance Life Ins. Co. v. Hightower, 148 Ga. 843, 845 (98 S. E. 469); New York Life Insurance Co. v. Patten, 151 Ga. 185 (106 S. E. 183); Davis v. Metropolitan Life Ins. Co., 161 Ga. 568 (131 S. E. 490); Darby v. Mutual Benefit Life Insurance Co., 165 Ga. 516 (141 S. E. 410). Eliminating the testimony of the wife of the insured, there was no conflict in the evidence, and it demanded a finding that the insured made false and fraudulent statements in his written application, and that they were very material to the risk assumed. For the reasons above given, I am of the opinion that the judgment of the Court of Appeals should be reversed.