60 Ga. App. 431 | Ga. Ct. App. | 1939
Lead Opinion
On October 30, 1937, the plaintiff made an application to the insurance company for a life, accident, and health policy which was issued to him, the application being made a part of the policy. Thereafter, the insured accidentally lost a leg. He made a demand for payment under the policy which was refused, and he brought suit thereon. The defendant contended that the policy was void because of fraud and because of material misrepresentations in the application, in that the plaintiff failed to disclose that he had other life, health, and accident insurance, or application therefor pending; failed to disclose that other life or disability insurance had been declined, postponed, rated up, or canceled; failed to disclose all claims demanded or received on account of injuries or illnesses; failed to disclose that he had had bronchitis, malaria, a spot on his lung, án infected sinus, and la grippe, and failed to disclose an operation for tonsils and adenoids. The trial resulted in a verdict for the insured for the amount sued for ($1091) and “all statutory charges and attorneys’ fees in amount of $300.” The defendant’s motion for new trial was overruled and it excepted. The only question presented is whether the evidence authorized the verdict, the defendant confining its' motion to the general grounds and the special grounds which are merely elaborations of the general grounds.
The policy in question was issued to the plaintiff on November 8, 1937. Attached to and made a part of the policy was an applica
On the trial of the case the plaintiff- insured testified, relative to the first part of question 8, that he did not have any insurance at the time he made his answer and that his answer was true. Relative to the second part of question 8, as to any pending applications for other insurance, he testified: “That question was not asked or answered by me.” .However, he further testified: “I had applied for a policy of insurance with the Provident Life & Accideixt Insurance Company on October 25th,. 1937 [five days before the
It has been repeatedly, held by this court and the Supreme Court that as a general rule questions as to the truth and materiality of representations in policies of insurance are questions of fact for
With reference to representations in applications for insurance, the present Code declares in § 56-820, which repeats verbatim the language used in the Code of 1863, § 2752, that “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 variation by which the nature, extent, or character of the risk is changed shall void the policy.” And Code, § 56-821, which repeats verbatim the language used in the Code of 1863, § 2753, declares: “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, hut 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.” However, the legislature passed an act in 1927 (Ga. L. 1927, p. 223), which is now codified in the present Code in § 56-908 as follows: “All persons applying for life insurance in a life insurance company writing life insurance in this State shall submit to such reasonable rules and regulations as may be prescribed by such
It should be noted that Code, § 56-1406, declares that “A stricter good faith as to representations and concealments is required in mutual insurance than in any other similar contracts,” and this court has said in the case of Mutual Benefit Health & Accident Asso. v. Bell, 49 Ga. App. 640, 645 (176 S. E. 124), that “fire, life, and accident insurance policies are voided where the insured makes representations which are false, though the same are made in good faith, if thy relate to material matters.” See also cases there cited. Therefore, where the answers, as in the instant case, were such a variation from the truth as to ’'“change the character and nature of the risk as contemplated in the policy so issued by the Compaq,” they will void the policy. Code, § 56-908; Firemen’s Ins. Co. v. Parmer, supra.
It has been held by this court that a reply in the negative, in a signed application, to a question as to whether the applicant had ever been rejected for life insurance, materially affected the nature, extent, and character of the risk and avoided the policy. Sovereign Camp W. O. W. v. Reid, 53 Ga. App. 618, 621 (186 S. E. 759). In N. Y. Life Ins. Co. v. Hollis, 177 Ga. 805, where the insured answered negatively when questioned as to previous illnesses or consultations with doctors, the Supreme Court held: “It would seem that in some cases a mere headache would be a negligible matter; but the insured in this case had been treated for other sickness than that of a mere headache. If she had had merely headaches and had been treated for those headaches bjf a physician, the insurance company should have been informed of the fact by a truthful answer to the question contained in her application. A misrepresentation as to whether the insured had been attended by a physician, whether for a headache or other ailment, was material, because the company
Of course this case is distinguishable from those cases in which the policy was complicated, and the insured might reasonably have, and did, misinterpret his policy as being a policy of one kind when in fact it was a policy of another, as was the case in Mutual Benefit Health & Accident Asso. v. Bell, supra.
In his testimony the insured said that certain of the questions were never asked him by the agent, and that among them was question 8, relative to applications for insurance in other companies. This, however, does not affect the rights of the parties, for it appears from the evidence that the insured was laboring under no physical defects; that he was a high-school graduate and could read and write; that he did not sign the application by reason of some misleading artifice or device perpetrated by the agent, or was prevented from reading the application containing the false answers before he signed it, or that the answers were inserted by alteration after the application was signed; and where the application is attached to and made a part of the policy, as in the instant case, the beneficiary suing on the policy can not separately impeach the application as thus integrated therein.- The application must stand or fall as a part of the policy, and if the application falls so does the policy, for the insured is committed to the representations set forth in the application. Southern Surety Co. of N. Y. v. Fortson, 44 Ga. App. 329, 339 (161 S. E. 679); Wilkins v. National Life & Accident Ins. Co., 23 Ga. App. 191 (2 c) (97 S. E. 879). In
In addition, as to question 9, relative to the cancellation of any life or disability insurance, the insured testified that “they did cancel the policy,” referring to a policy with another company which had been canceled before the application for the policy here sued on. He unquestionably knew the answer was not the truth, and he should have truthfully answered in order that the company might place such weight upon his explanation as it saw fit.
It will be further seen from the undisputed evidence in’ this ease that at the time Mr. Marsh applied for the insurance he had been disabled an unusually large number of days during the years from January 12, 1920, to December 20, 1932, and had received benefits for sickness and accidents during this time of approximately $2200; that he had been operated on; that he had received treatment in a hospital; that he had had malaria, grippe, and bronchitis; that at the time he made the application he had pending an application with the Provident Life & Accident Insurance Company or a policy had been issued him; and that the Benefit Association of Bailway Employees had canceled its policy with him. None of the above information was given the Mutual Benefit Health and Accident Association, and to all of it. it was entitled.
The evidence demanded a verdict for the defendant except for the small sum it tendered as a repayment of the premiums received by it on the policy, to wit: $36.40. The evidence showed without contradiction that some of the most material statements in the application were false (in fact their untruthfulness was admitted by the
In other words, we are of the opinion that the evidence conclusively shows that the plaintiff wilfully misrepresented and concealed material facts which the defendant had the right to consider in determining whether it would issue the policy to the plaintiff, and therefore that the evidence demanded a verdict in favor of the defendant. It follows that the court erred in overruling the motion for new trial.
Judgment reversed.
Rehearing
ON MOTION ROE REHEARING.
It is true that the insured and the doctor testified as to the insured’s good health at the time of the application and for some ten years previous thereto. However, there is no law requiring an insurance company to insure every person in good health. It is purely voluntary on the part of the insurance company as to whom it will insure, whether rich or poor, large or small, Christian or heathen, whether he or she is in good or bad health (if the company knows it). To illustrate: an applicant might be the finest specimen of physical manhood in all the State and in perfect health, yet if the company, justly or unjustly, thought he had a propensity for getting hurt in order to collect insurance, or if it thought he had, or was endeavoring to obtain, an abnormal amount of insurance, which justly or unjustly aroused the suspicion that he was getting ready to commit suicide, or otherwise injure himself, in order that the beneficiary might collect the insurance money, the company could refuse the application; or the company could likewise refuse to enter into a contract for the reason that one or more companies had canceled his policies, for "‘In general, it may be said that the test, in determining whether questions contained in an application for insurance are material, is whether the knowl
The insured’s incorrect answer to the second part of question 8 that he had not made application for a policy of insurance in any other company when in truth he had done so five days before the date of the application for the policy in question, and about three weeks later received a policy from this other company, and his untruthful answer to question 9 that he had never had a policy canceled on him would themselves have voided the policy, for they were misrepresentations of material facts affecting the nature, extent, and character of the risk of the insurer. Sovereign Camp Woodmen of the World v. Reid, 53 Ga. App. 618 (supra). We recognize the rule in Southern Life Insurance Company v. Wilkinson, 53 Ga. 535, 549, that '“to have asked one over forty years of age to state every ‘affection,’ ‘local disease’ or ‘personal injury’ which he might have had or endured in his lifetime, whether serious, or light and trifling, would be absurd. No one could possibly meet such a question, and it would make the catalogue nonsense as to all practical purposes when it appeared.” However, in the instant case, even if it was a jury question whether the untruthfulness and incorrectness of the answers as to receiving at least thirty benefits between January 12, 1920, and January 23, 1933, in the amount of approximately $2000, and other untruthful statements that he did not receive treatment in the hospital and had not had malaria, grippe, or bronchitis, were or were not oversights, yet on account of their number and character and the time of their occurrence, he having admitted them on the trial, they would be undisputed corroborative facts tending to support the already established misrepresentations which were sufficient to void the policy, and the probative value of these undisputed misrepresentations which were incidental, increased in geometrical ratio with the number of material misrepresentations made by the plaintiff. The more the number, the less likelihood of their being the result of oversight. Mutual Benefit Health & Accident Association v. Bell, supra. “ ‘The materiality of a concealment or representation of fact [of these collections of approximately thirty benefits etc.] depends, not on the ultimate influence of the fact upon the risk or its relation to the cause of loss [of the insured’s leg], but on the immediate in
It is argued that the case of Life Insurance Company of Virginia v. Fitzgerald, 143 Ga. 725 (85 S. E. 913), is not controlling because the policy in that case provided for a forfeiture in case the insured had applied for other insurance, whereas no such provision appears in the instant case. It will be seen from an examination of the policy here that “strict compliance on the part of the insured and the beneficiary with all the provisions and agreements of this policy, and the application signed by the insured [and which was attached to the policy], is a condition precedent to recovery and any failure in this respect shall forfeit to the association all right to any indemnity.” Therefore the motion is
Denied.