12 S.E.2d 419 | Ga. Ct. App. | 1940
1. On the trial of a suit to recover on a life-insurance policy, the benefit provided therein payable on the death of the insured, which policy contains a provision that there will be no liability therefor if, before the issuance of the policy, "the insured . . has been a patient or an inmate of any institution for the treatment of physical or mental disease, . . or has been attended by a physician, . . unless it be shown by the claimant that no such institutional . . or medical attention was for a serious condition," where it appears without dispute from the evidence that on April 12, 1938, before the issuance of the policy on December 26, 1938, the insured, without the knowledge of the insurer, had been treated for a disease known as "pellagra," which is "a serious disease" and is "a fairly common cause of death," and that on April 6, 1939, the insured died of such disease, it appears undisputed that before the issuance of the policy the insured had been treated for a "serious condition," and the insurer is not liable for the payment of the benefit provided in the policy.
2. No error as assigned appears in the charge of the court.
The policy sued on was dated December 26, 1938, and contained *138 the condition or provision quoted above. It was admitted by counsel for the plaintiff that the insured had consulted a physician at the Grady Hospital before the issuance of the policy. It appeared from the evidence that the insured had untruthfully answered in the negative the question in the application as to whether she had been treated by a physician; that on March 29, 1938, she had visited the clinic at the Grady Hospital in Atlanta, Georgia, where she was treated for an irritated condition of the skin on the back of her hands and arms; that she returned to the hospital clinic on April 5, 1938, at which time her skin condition had improved, but she was advised to continue with the treatment; that she returned to the hospital clinic a third time on April 12, 1938, at which time her condition was definitely diagnosed as pellagra; that the attending physician at the clinic prescribed treatment for the insured; that he told her that she was suffering from pellagra and gave her a prescription for yeast to take, and advised her how to take it; that he advised her to take foods containing protein, and named them specifically. The physician testified that there was not any question in his mind but that on April 12 the insured was suffering from pellagra. The insured returned to the hospital again on April 19, 1938, at which time, the attending physician testified, she appeared to be improved. After that date she did not return again to the hospital, although she was advised by the doctor to return. This physician, Dr. P. H. Nippert, who was a specialist in dermatology, testified: "Pellagra is recognized as a deficiency disease. . . It is a condition that develops as the result of having an insufficient amount of certain vitamins." He testified that patients often recover therefrom if they continue the treatment, but that many of them, after having taken treatment for a reasonable length of time, "show rather remarkable improvement, and because of that fact they feel sure that they are entirely well, and usually . . they just stop treating it and, of course, it returns quite promptly." This physician testified: "Pellagra is recognized in medicine as a serious disease," and "is a fairly common cause of death." There was no evidence tending to impeach the testimony of this physician. It further appeared from the evidence that the insured died on April 6, 1939, and that the cause of her death was pellagra. There was evidence in behalf of the insurance company to the effect that *139 at the time the policy was issued it had no knowledge that the insured had been previously treated at Grady Hospital. There was no evidence tending to contradict any of the above.
The defendant moved for a new trial on the general grounds, and by amendment added certain special grounds in which certain excerpts from the charge of the court were excepted to. It appears conclusively from the evidence that about eight months before the issuance of the policy the insured was treated for pellagra, a serious disease, and that when the defendant issued the policy it had no knowledge of this fact. There appears no waiver as to this by the defendant, either entered on the policy or otherwise. By virtue of the provisions of the policy limiting the liability of the company to the amount of the premiums paid, where the insured had been treated for a serious disease before the issuance of the policy, the plaintiff was not entitled to recover the benefit provided for. Therefore the verdict found for the plaintiff was without evidence to support it and was contrary to law. If there was any error in the excerpt from the charge of the court excepted to in ground 4 of the amendment to the motion for new trial, in that it stated that the burden of proof was not on the plaintiff to show that the treatment received by the insured was not for a serious condition, there is no exception to the charge of the court on this ground. That portion of the charge in ground 4 which instructed that the plaintiff should show by a preponderance of the evidence that the condition of the insured when she received treatment was not serious was favorable to the defendant, and therefore, if error, the defendant can not complain. It was not error harmful to the defendant for the court to give in charge the law with reference to fraud in the procurement of the policy. The excerpts from the charge of the court were not error for any reason assigned.
Judgment reversed. Sutton and Felton, JJ., concur.
