53 Ga. App. 677 | Ga. Ct. App. | 1936
This was a suit on a life-insurance policy. The company defended on the ground that the policy was void, because the insured was not in sound health when it was issued and delivered, and because of certain false answers to questions propounded in the application, concerning the health of the insured, and as to who his physician was. The application was not attached to and made a part of the policy. The policy provided that if the insured was not in sound health on the date thereof, or if before said date the insured,had any heart disease, the insurer could, within two years from its date, declare the policy void. The application was made on June 5, 1934. The company introduced eyidence tq the effect that the insured was treated by
1. The insurer defended the suit on the policy on the ground that the insured was not in sound health at the time of the issuance thereof, and because the insured, in the application, falsely and fraudulently answered certain questions propounded to him con
2. "Where the application was not attached to and made a part of the policy, the representations of the insured in the application, although false and material, would not authorize an avoidance of'the policy, unless fraudulently made.
3. The defendant contends that the judge erred in failing to charge the jury that the policy sued on was void, and the insurer liable only for the return of the premiums paid, if the insured was not in sound health on the date of the delivery of the policy, in that he was then and had been suffering from a disease of the heart, and had been treated for a disease of the heart by physicians, and that the insured died on July 2, 1934, the policy sued on providing that if the insured was not in sound health on the date thereof, or if before the date thereof the insured had had any disease of the heart, the insurer might (within the contestable period of two years) declare the policy void, and liability would be limited to a return of the premiums paid on the policy. The defendant contends that the judge charged the jury on the defense raised by it as to the false and fraudulent answers of the insured to the questions in the application, but failed to charge on the question as to the sound health of the insured at the time of the delivery of the policy. The defendant contends that “this special defense was based on a specific provision of the contract itself, and not upon but independent of the alleged misrepresentations in the application.” In National Life &c. Ins. Co. v. Martin, 35 Ga. App. 1 (132 S. E. 120), this court held that this defense was not applicable to a case of this kind, that is, where the insured is charged with having falsely and fraudulently misrepresented the condition of his health in the application which is not attached to the policy, and the evidence on the question of the wilfulness and
4. The insured was charged with having made false answers to the questions propounded in the application, and the application was not attached to the policy; so it was necessary that the jury find that the false answers were fraudulently made for the purpose of procuring the issuance of the policy. The jury were fairly and clearly instructed on this issue. The fact that in charging on this principle the judge instructed the jury the difference between the two rules, false answers material to the risk where the application is attached, and false answers fraudulently made to procure the policy, and also charged them as to the difference between wilful concealment of material facts in the application and false representations as to material matters in the application, under the decisions of this court in Mutual Benefit Health &c. Asso. v. Bell, 49 Ga. App. 640 (176 S. E. 124), and John Hancock Mutual Life Ins. Co. v. Yates, 50 Ga. App. 713 (179 S. E. 239), when there was no contention by the insurer that the insured had concealed any material facts or that false answers to the questions in the application in this case would have voided the policy unless made fraudulently to procure the policy, does not require the grant of a new trial to the insurer. Such charge was more beneficial to the insurer than to the insured.
5. There being no error in the charge complained of, and the verdict being supported by the evidence, the judge did not err in overruling the motion for new trial.
Judgment affirmed.