43 Ga. App. 669 | Ga. Ct. App. | 1931
Henry McAleer, as administrator of the estate of Perry.J. Hernandez, brought suit against the Metropolitan Life Insurance Company on a life-insurance policy which provided that in consideration of weekly premiums of twenty-five cents each the company would, upon satisfactory proofs of death, pay the executor or administrator of deceased $456.00. The 7th paragraph of plaintiff’s petition is as follows: “Petitioner shows that at the instance of an agent of said defendant, a Mr. Miller and a Mr. Henderson called upon the said Perry J. Hernandez, and insisted upon him taking out additional insurance with the defendant, whereupon Mr. Hernandez stated that he had been sick and had only recently returned from the hospital and was attended by Dr. M. J. Egan, and did not think he could obtain insurance. Mr. Miller, whose given name is unknown to petitioner but [who] was an agent of said company, assured Mr. Hernandez that when a policy issued by the company [was] for less than $500, that it was not necessary to have a medical examination; and the fact that he had been sick would be no ground to refuse issuing him a policy.” The defendant company moved to strike this paragraph, and demurred to the petition and particularly to this paragraph, on the ground that the
It is admitted that at the time of the death of the said Perry J. Hernandez all premiums due on the policy were paid. Mrs. Laura Hernandez, wife of the assured, testified in part as follows: “Mr. Hernandez said he couldn’t stand a medical examination. They [the agents of defendant] said the policy was under $500, he didn’t need any medical examination. That is what they told him. Thereafter he signed his name. He told them what his trouble had been, kidney trouble and heart trouble. . . I saw him sign his name to this application. When my husband signed his name there wasn’t nothing mitten above it, not a word. Nothing at all. I can not tell you when the writing above his signature on Part A of the application was put there. I was there all the time when the agents were there. . . Mr. Miller knew Mr. Hernandez’s condition, so did Mr. Henderson. Mr. Miller knew exactly when Mr. Hernandez went to the hospital, and also when he came back. . . At the time my husband signed that application there was nothing written up, and he made no statement, except that he wasn’t in physical condition. Not only Mr. Miller, but Mr. Henderson knew that he had been in a hospital. Both knew when he had been there for heart trouble and kidney trouble. . . Mr. Hernandez put the agents on notice that [he] had heart trouble and kidney trouble. I heard Mr. Hernandez make that statement to them. . . The agents knew when he went to the hospital, because they came there to collect premiums [deceased had previous insurance with same company] while he was there. . . He had that conversation about the heart and kidneys the day that they came to ask for the insurance; but the day when the application was brought out, there was no questions asked, only that he signed his name. . . Well, he had heart trouble and the agents both knew it. . . He told them, and they knew it besides. He said, ‘I can’t stand a medical examination,’ They
The contention of the defendant company is, in substance, that the policy of insurance was the entire contract; that parol evidence as to representations of the agents to the assured was not admissible to vary the terms of the written contract; and that under the terms of the contract it was void because of false representations in the application, made by the assured as to his health'. The plaintiff contends, in substance, that the application for insurance which the assured signed and which the agent of the defendant company wrote was given because the agents, to induce assured to take the policy, represented to him that no medical examination was necessary when the insurance was for less than $500; that said application was not a part of the contract of insurance (which is admitted in the brief of plaintiff in error), and that parol evidence as to the inducement offered by the agents to the assured to get him to sign the application is admissible; that the agents of the defendant company knew of assured’s state of health; and that their knowledge was imputable to the defendant company. Briefly stated, the controlling issue is this: When an agent of an insurance company has knowledge that the insured is sick and has been sick with a serious disease a few months prior to the issuance of the policy of insurance, and it further appears that the applica^ tion is not a pari of ihe policy, and all premiums are paid at the time of the death' of the assured, is the insurance company liable under the policy?
In the case of Rome Insurance Co. v. Thomas, 11 Ga. App. 539 (75 S. E. 894), “there was sharp conflict in the testimony as to whether the agent had notice at the time he took the policy that the insured, had pellagra.” This, of course, was a question for the jury. The 3rd and 4th headnotes in that case are as follows: “As to all matters affecting conditions precedent to a contract of insurance, the hnoiuledge of the agent of ihe insurance company is imputed to the company, and the company is thereby charged with notice of any facts affecting the risk about to be assumed, which may have come to or rest in the knowledge of its agent, and which good faith in the discharge of his duty as agent would require him to disclose to his principal. If, before or at the time of execution of the contract of insurance, the insurance company’s agent who
The special grounds of the motion for a new trial show no
The court did not err in overruling the demurrer to the petition, or the demurrer to the 7th paragraph thereof, or in overruling the motion for a new trial.
Judgment affirmed.