177 Ga. 632 | Ga. | 1933
Lead Opinion
This case came before this court on two questions certified by the Court of Appeals, as follows:
"1. Where a policy of life insurance, issued after a medical examination but without a written application, provides that fif the insured is not alive or is not in sound health on the date hereof,*633 . . or has within two years before the date hereof been attended by a physician for any serious disease or complaint, or before said date has had any pulmonary disease, or chronic bronchitis, or cancer, or disease of the heart, liver, or kidneys . . unless such previous disease is specifically recited in the ‘Space for Endorsements ’ on page 4 in a waiver signed by the secretary or an assistant secretary, . . the company may declare this policy void, and the liability of the company in the case of any such declaration in the ease of any claim under this policy shall be limited to the return of the premiums paid on the policy/ and where such policy further provides that ‘it constitutes the entire agreement between the company and the insured and the holder and owner thereof/ and where it further provides that ‘its terms can not be changed, or its conditions varied, except by the express agreement of the company evidenced by the signature of its president or secretary, and that ‘therefore agents (which term includes also managers, superintendents, and assistant managers) are not authorized and have no power to make, alter, or discharge contracts, to waive forfeitures or to receive premiums on policies more than thirty-one days in arrears/ will actual knowledge on the part of the agent of the company soliciting the insurance, or on the part of the physician examining the insured on behalf of the company, or the knowledge on the part of both such persons, acquired prior to the issuance of the policy but not communicated to any general agent or officer of the company, that the insured had in fact been attended by a physician and had one of the diseases specifically mentioned in the quoted provisions of the policy within two years prior to the date thereof, be imputed to the company; will the company, by .virtue of having issued the policy with such knowledge on the part of its agents or physician or both, be deemed to have waived such condition or be estopped to claim a forfeiture on account of the breach thereof ?
“2. If the foregoing question should be answered in the affirmative, would the liability of the insurance company in a suit on such a policy, even though it should be deemed to have waived such condition of the policy, or though it should be estopped to claim a forfeiture on account of the breach thereof, be limited to the return of the premiums paid on the policy ?”
1. The first question must be answered in the affirmative, upon
It follows that the first question of the Court of Appeals must be answered in the affirmative, and that the second question should be answered in the negative.
Dissenting Opinion
dissenting. Under the rulings in Reliance Life Insurance Co. v. Hightower, 148 Ga. 843 (98 S. E. 469), and cit., New York Life Insurance Co. v. Patten, 151 Ga. 185 (106 S. E. 183), and Davis v. Metropolitan Life Insurance Co., 161 Ga. 568 (131 S. E. 490), the first question propounded by the Court of Appeals should, in my opinion, be answered in the negative. The only difference between those cases and the present case is that there was no written application mentioned in the question now being answered. It does not seem that the law of the case is different whether there was a written application or not, provided, as in the question now propounded, the policy itself gave notice to the insured. In all three of the cases here cited there were written applications, but the court held in the case first cited: “An insurance company may limit the power of its agent; and when notice that the agent’s power is limited is brought home to the insured in such manner as would put a prudent man on his guard, the insured relies at his peril on any act of the agent in excess of his power. . . The insured is bound by plain and unambiguous limitations upon the power of the agent contained in his policy.” The opinion in that case was written by the late Chief Justice Fish. In it he cited and considered all of the decisions previously rendered by this court, and which are cited as authority in the answer returned by the majority of this court, and additional cases. Obviously, notice of the limitations placed upon the agent is sufficient if it is given in the policy or if it is given in the application. And see Metropolitan Life Insurance Co. v. Alexander, 43 Ga. App. 385 (159 S. E. 124). The rulings in the first two cases were concurred in by all of the Justices. In the Davis ease there were five concurrences and one dissent. For these reasons the writer can not concur in the answer to either of the two questions.