19 S.E.2d 557 | Ga. Ct. App. | 1942
Lead Opinion
1. Where the company issued a policy of industrial life insurance upon an application which contained information that the insured was twenty-one years of age, was six feet one inch in height, but weighed only 146 pounds, that he had had "bronchitis," and that a certain named doctor attended him, and it further appears that the insured told the agent of *896 the company he had had "bronchiectasis" and the agent put "bronchitis" in the application (medical testimony disclosing that "bronchiectasis" and "bronchitis" are terms usually confused and used interchangeably by laymen), and the company seeks to avoid liability upon the ground of fraud in the procurement, in that the insured misrepresented the condition of his health, the jury was authorized to find that the company had knowledge of the insured's physical condition, or at least had sufficient knowledge to put it upon inquiry as to the soundness of the insured's health. The company, having issued the policy and received the weekly premiums, is estopped from deriving any benefit from a stipulation in the policy which might have availed it if it had been ignorant of the facts.
2. The charge complained of was in the language of Rome Insurance Co. v. Thomas,
3. The evidence authorized the verdict, and no error of law appears.
This is a case where the application was not attached to or made a part of the policy, and where the evidence clearly presented an issue of fact as to whether the applicant for insurance had made false representations with intent to defraud or wilfully conceal material facts in his application. Where, as here, the application is not attached to the policy, the company may not treat the application as a part of the contract or introduce it in evidence as such, or to show that certain statements were contracted or warranted to be true; but the company could plead and prove that the insured had made these false and fraudulent statements as to his health, and that the company was fraudulently induced to issue the policy and that the policy was therefore void, not as a matter of contract, but because of fraudulent procurement. Johnson v. AmericanNational Life Insurance Co.,
The application, dated May 15, 1939, stated that the agent of the company asked the insured: "Are you in good health?" The insured answered: "Yes." The agent then asked: "Who is your doctor?" Answer: "Dr. Aven, Medical Arts Bldg." He was asked: "What illness, injury or accident have you ever had? Give details." He answered: "Bronchitis 1938; May. Flu. Mar. 1939. Dur. 1 wk. recovered." All of the foregoing appears in the application. The insured died on May 24, 1940, of heart trouble following an operation for bronchiectasis. One of the provisions of the policy is that "No obligation is assumed by the company prior to the date hereof. Except as elsewhere herein provided, if . . Its terms can not be changed or its conditions varied, except by written agreement signed by the president or secretary of the company." But the question here presented is not a question of waiver so much as of notice and estoppel. See Johnson v. AEtnaIns. Co.,
Taking all the facts and circumstances of the case into consideration we think the jury was authorized to find that the insured was not guilty of fraud in procuring the policy, and that the company knew or should have known, not only through its agent, but also through matters stated in the application, that the insured was not in good health at the time the policy was issued, and that by accepting the premiums it waived any defense it might have insisted on under the policy. The jury was authorized to find that the insured was not guilty of fraud, but that on the contrary his acts were consistent with good faith.
The charge complained of was in the language of RomeInsurance Co. v. Thomas, supra, and was applicable to the facts of this case. The agent here was not, as urged by the defendant, a mere solicitor, and therefore not empowered to waive any right of the company. He had been employed by the company for seventeen years, and actually made out the application. This was an industrial life-insurance policy, and the rule that "knowledge of material facts on the part of an agent of an insurance company is notice to the company; and if, with this notice, the company issues a policy, it is estopped in equity from deriving a benefit from any stipulation in the policy which might have availed if it had been ignorant of the facts," is especially applicable "for the reason that [the industrial policy] operates largely among and principally affects that portion of our population who pay for the protection which life insurance affords out of the weekly earnings derived from their labor, and who are in many instances easily imposed upon by the statements of agents." Id. 546.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.
Addendum
The policy in the instant case provided: "No *899
obligation is assumed by the company prior to the date hereof. Except as elsewhere herein provided, if the insured is not alive or is not in sound health on the date hereof; or if before the date hereof, the insured has been rejected for insurance by this or any other company, order, or association, unless such rejection be specifically recited in the `Space for Endorsements' in a waiver signed by the secretary, then, in any such case, the company's full liability shall be discharged by the payment of the sum of the premiums received hereunder." In MetropolitanLife Insurance Co. v. Hale,
Rehearing denied. Broyles, C. J., and Gardner, J., concur.