36 S.E.2d 753 | Ga. | 1946
The insurer is not estopped from asserting non-liability except for a return of premiums paid, under the limitation of insurance clause and non-waiver provisions contained in an industrial life insurance policy, providing that: "Within two years from date of issuance of this policy, the liability of the company under same shall be limited, under the following conditions, to the return of premiums paid thereon: (1) If the insured was not in sound health upon the date of issuance and delivery of this policy, or if the insured before its date had tuberculosis;" and, "This policy shall constitute the entire contract. Any erasure or alteration made herein except by endorsement signed by the president or secretary, actuary, or other officer of the company, shall be void. Agents (which includes managers and superintendents) are not authorized to make, alter, or discharge contracts, or waive forfeitures or any provisions or terms of this policy" — though the application for insurance was not attached to the policy, and where the agent soliciting the insurance and delivering the policy had full knowledge that the insured was not in sound health upon the dates of the application for and the issuance and delivery of the policy, and that the insured had tuberculosis at the time of the application and when the policy was issued and delivered, from which disease she died within less than two years from the date of the policy. Gray
v. Life Casualty Ins. Co.,
"Limitation of insurance" clauses similar to that here under consideration have been held valid and binding upon the insured in Gray v. Life Casualty Ins. Co.,
Thereafter this court on certiorari, in Carter v. Life Casualty Ins. Co.,
The opinion of the Court of Appeals in the Carter case quotes with approval from Champion v. Life c. Co.,
The fact that, as stated in the question propounded in the present case, the application for insurance was not attached to the policy could not alter the binding effect of the "limitation of insurance" clause as a valid contractual right in the insurer. Where there is no such clause as here, the fact that the application has not been attached would be pertinent on the question of liability of the insurer for the full amount of the policy where the company defends on the ground of fraudulent representations material to the risk, because, since the act of 1906 (Ga. L. 1906, p. 107; Code, § 56-904), the unattached application does not become a part of the contract between the parties, and the Code, § 56-820, which provides that representations contained in an application for insurance shall be considered as covenanted to be true, is modified by the act of 1906. In such a case the insured might recover the full amount of the policy, if the evidence authorizes the jury to find that, in making assertions in his application as to freedom from a serious disease or complaint, which were in fact untrue, he did not act fraudulently but in an honest belief that he was not so afflicted. National Life c. Co. v. Williams,
The significance of an unattached application relates to those cases where the question is as to liability for the full amount of the policy, and where there is involved only the question as to whether or not in making false representations material to the risk the applicant acted fraudulently. The question here involves a contract for limited liability under certain conditions, a contract in which the company hazards the possibility that, if the insured, though suffering with a serious disease, lives for the period of two years, the policy will become binding for payment of the full amount, but that, if the insured dies within the two-year period, the company's liability shall be limited to a return of premiums paid.
The decisions of the Court of Appeals in Gray v. Life Casualty Ins. Co., supra, and Life Casualty Ins. Co. v.Carter, supra, are sound in principle, and are affirmed by this court in Carter v. Life Casualty Ins. Co., supra. Since it was held in the Carter case that actual knowledge by the insurance company would not estop it from asserting the limited liability contracted for, there would not be an estoppel because of imputed knowledge of the company by reason of the knowledge of the agent. In the Carter case in the Court of Appeals, that court held that the policy would not be unfair to the insured if the amount of premiums to be paid was based on the kind of policy issued; both parties contracted with the knowledge that before the date of the issuance of the policy the insured suffered from a serious disease or complaint; the evidence authorized an inference that the serious disease or complaint was one of the elements that entered into and brought about the particular kind of insurance contracted for; and there *279 was no allegation or proof that the insurance company was guilty of fraud or misrepresentation. Since this court can only answer questions of law certified by the Court of Appeals, we cannot determine what the jury would be authorized to find from the evidence. Whether or not the insurer in this case should be successful in maintaining its defense of non-liability except for the return of premiums paid, would require an investigation of the evidence. However, under the question certified, the insurer would not be estopped from asserting non-liability except for a return of premiums paid, under the limitation of insurance clause and non-waiver provisions contained in the industrial life insurance policy under consideration; and the question must, therefore, be answered in the
Negative. All the Justices concur, except Wyatt, J., whodissents.