*1 of counsel every We reconsidered case cited in the briefs have plaintiff, defendant- those particularly for the and for the spite of the rehearing, cases relied on the motion for but presented counsel the defendant’s earnestness with which has judgment originally rendered position, we must adhere to the in this case. Town-
Judgment rehearing. Gardner, P.J., on adhered to send, J., concur. ACCIDENT INSURANCE NATIONAL &
33897. LIFE v. MOORE. COMPANY Rehearing denied July 28, May 27, 1952. Decided *6 plaintiff in error. for Buchanan, F.Wm. McCamy, & I-Iardin Mitchell, contra. Bolling, Mitchell & Walter H. in allegations appears the Although it that J.
Carlisle, dealings referring to the between original answer, the defendant’s were premium, payment of the Langston to the and as Moore the essentially special demurrer, trial on by the court stricken the amendment to subsequent included in a were same facts does filed, it allowed and ordered and the court answer which plaintiff that before this court the from the record appear not of this latter amend any exception to the allowance preserved pleadings in the reached in the state which Thus, ment. viewed presented by the the trial defenses the of the court, at time (1) for a of insurance void the contract was answer were: in the with reference to misrepresentation application material (2) intoxicants; premium use of first had not applicant’s the the premium receipt. The that recited in defense paid as the been major approved, had never been the for insurance application the from the the case here was eliminated before, defense when was that, although in admission answer the defendant’s its case (and scarcely issued policy policy the would be the was issued approved), been it application had not had not been the if Thus, eliminating question for the moment the of delivered. recovery statutory of penalty the and at propriety the torney’s fees, questions narrowed, the for solution are under the grounds, to contract for general whether insurance was misrepresentation in the application, a material or void for never the contract became of force the first whether because paid. in had never fact been premium Ins. Barnes, App. & Accident v. In National Co. 61 Ga. Life (1) (7 299), applications that in 2d, S. E. it was held question, you what “To extent do or now, insurance have intoxicants, past, used you morphine, cocaine, in the other or drugs?” “generally habit-forming is held to have reference to ‘customary’ drugs or use drinks, ‘habitual’ such or of ‘exceptional’ an refer to ‘occasional’ or does not use of such question, construction of drugs or drinks.” Under this be said evidence, not, can under the applicant’s “None” answer misrepresentation. While there material to have amounted to a inferred jury could have that evidence which is from resulted drunk the accident which applicant was at the time of to death, subsequent application. was his such intoxication of applicant’s use only bearing upon the The other evidence he had testimony that intoxicants at all of one witness was the “he when applicant returning home on one occasion seen the sick,” half a little full or about like a man that was walked drinking. been This impression it that he had was the witness’s finding that the authorize, demand, did not or even a evidence application untrue, applicant’s question answer to of insurance nullify defendant’s the contract and the effort misrepresentation was ineffective. upon ground a material when here Under decision this court the case was *7 before, insurance, by the “binder contract of evidenced the insurance receipt” application became force when the for was of application admitted, The as approved. approval of the was receipt reciting payment the have said. The binder the of we monthly premium Lang- in evidence, was intro'duced and first ston, soliciting that, at time agent, the testified the defendant’s receipt application prepared the premium the was and was 10, daily delivered him, Langston, on June Moore to issued his Langston paid him newspaper for which at the end of the month, they agreed the end that that at of the month Moore would and newspaper Langston paid up pay mark the account and would monthly premium. There evidence rec- the first was that the company monthly defendant indicated that the first of the ords agent’s paid; company accepted had been that the the premium premium by applicant the payment the of the and word as to month agent premiums; is, once a for such that with the settled by company agent, followed the with custom its the under the required pay company, over to the the agent to between was following premiums month, the which he and tenth of the first which had in on insurance he written and to sent had collected any month. There in one was evidence that other company the company, those of indicated cashier, of its that records paid. plain- In never been its first answer to premium had 626 first .petition, payment
tiff’s the defendant admitted monthly premium, although admission later and was this evi plaintiff counsel for the read this admission into stricken,. authorized to jury dence. Under these was circumstances, premium find that in con paid.' See, had fact been in this Empire nection, Annuity Co., Williams Mutual Ins. 8 v. &c. Ga. (9) App. (68 1082); Liberty S. E. and Ins. National Life (28 App. Co. cases Parrimore, 190), v. 70 Ga. E. 2d, S. cited. therefore, find, follows, jury
It that the were authorized as to they obviously did, that insurance at the time was force payable ihe death and insured’s was due and at the time of the trial. pointed earlier,
As
been
after
plaintiff,
has
out
all
in,
evidence
amended her petition
so
include the
as to
statutory penalty
attorney’s
provided
by
fees
Code
for
56-706.
In
section,
necessary
order
recover under
it
to
is
§
appear
company’s
that it
that the
pay
insurance
refusal
.faith,
in bad
company
loss was
and the mala fides of the
is
generally
question
jury. Liberty
a
for the
Mutual Ins. Co. v.
(9
A. L. Co.,
App. 826,
C. R.
66 Ga.
2d, 377),
S. E.
and cases
cited. The insured died
12,
By
21,
on June
1949.
March
1950, at which
formal
payment,
time
demand was made for
payment had not been made. On July 31, 1950, suit was filed
plaintiff.
The
defendant
its
that
answer first admited
monthly premium
paid,
the first
had been
but
that
contended
application
had
approval
insurance
never been approved,
application constituting
precedent
condition
a
to the
applicant. By
insurance of the
amendment,
positions
these
*8
by
taken
reversed,
the defendant were
and it was then contended
that, although
application
the
had
approved,
been
premium
the
paid.
been
had never
Certain marks
application,
on the
which
possession
defendant,
explained
was in the
the
of
when
by the
witnesses,
defendant’s own
showed that
in
application
fact the
approved
been
had
that this evidence was before the defend
approval”
ant at the time the
of
defense
“no
was made.
In
reversing
positions,
addition to
its
the
up
defendant set
the
misrepresentation
defense of a material
applicant
in that
the
had
question
answered “None”
the
to
as to the extent to which
produced
The
no
he
or
intoxicants.
defendant
used
had used
Counsel for the plaintiff
evidence to substantiate
defense.
the
changes
position by reading
the
in
illustrated
defendant’s
other
appropriate pleadings
in
read
evidence,
into
addition
the
which showed that the defend
parts
pleadings,
of
defendant’s
produce the
replied
plaintiff’s
ant had
to the
notice to
also
policy
issued,
it could
had never been
that
not do so as it
position
by
which
was reversed
the defendant’s admission
a
also
not
policy
that the
had in fact been issued but had
been deliver
explanation
in
of
ed. The defendant
introduced no evidence
changes
position
its varied
in its defenses to the suit and the
of
questions
policy
answers to such
as to whether the
had been
issued,
application approved,
premium
the
the
paid, were cer
tainly
knowledge
easily ascertainable;
within its
or
and certain
ly
12,
when
1949,
it is considered that the insured died on June
go
April
and the case did not
5, 1951,
to trial until
the defendant
ample
had
investigate
had
time to
and establish some
if
basis,
basis there was,
applicant
contention
for its
that
had mis
represented
light
use
intoxicants.
In the
foregoing
his
of
of the
circumstances,
jury
were authorized to find that
defend
pay
refusal
ant’s
loss covered
the contract of insurance
in
question
was
bad faith. On
of utilizing
admissions in
pleadings
although
evidence
from
pleadings,
as
stricken
see
(46
Railway
Alabama Midland
Guilford,
Co. v.
From what has been said division of this con cerning agreement applicant between the insurance and agent payment by as agent the defendant’s to the monthly premium, first of upon exclusion the evidence assigned (numbered special ground is 4) which error was ground harmless, and this is without merit. showing
Evidence the insured to have been intoxicated at time of the which resulted in death, accident his and which subsequent to the time of the issuance of the “binder any showing prior evidence receipt,” in the absence of a of habit in-, using way falsity in no intoxicants, illustrated the of representation application made in the sured’s as to his use of, prior to, at the time or intoxicants the issuance of the receipt preparation application; nor such and the would evidence *9 628 not, did court The trial in case. the any other issue
illustrate exception is which to excluding the evidence err in therefore, 5). (numbered 2 ground special taken in assigned upon (numbered 6), error is ground 3 special In motion for a continu the defendant’s refusal of the court’s trial plaintiff’s by the surprise occasioned ground of ance, on statutory for the allegations prayer a adding and amendment been evidence had attorney’s after all the fees, penalty and amend his the cause may any stage of party A at introduced. or of sub form in matter of respects, whether in all pleadings of the case history In view of the 81-1301. Code, stance. § the trial continuance, hearing for a on the and the evidence not would that the defendant to determine authorized court was position than it was placed any in better be by a continuance statutory for the against the demand defend the trial to at amendment; plaintiff’s in attorney’s fees, made penalty discretion therefore, abuse its in not, court did and the trial Schoenberg, continuance. Weil v. overruling motion for a (137 Wheeler, App. 7 Ga. App. 842); E. Deen v. Ga. 706 S. (67 212). S. E. overruling motion for a did in new The trial court not err assigned. any trial for reason J., concur. Townsend,
Judgment P.J., and Gardner, affirmed. Rehearing. for On Motion rehearing lay motion for a defendant in their Counsel been great upon that, rule where admissions have stress they subsequently, can pleadings in which are stricken made judicio estop the not be used as solemn admissions in so as to explanation pleader’s of such admissions. No such denial or given payment of the defendant's admission of effect payment original premium in case. The admission of in the this by answer, stricken, was introduced in evidence which was later plaintiff along and was entitled be considered with to payment pros question on the various other cons given given or intended be premium. other effect was No by this court to such admission. opinion already pointed original we have out
As case, customary it is the habitual or use of intoxicants which materially the risk a insurer, would increase to the so that render would to such use applicant as misrepresentation an insurer. option of at the contract of insurance voidable might well use be customary and intoxicants The habitual *10 of a proportions reached the by to have considered the insurer occasional or been an there had but not so where malady, of only evidence exceptional of intoxicants. The direct use his having that of drunken- ever used intoxicants was insured’s death, totally of case are day ness on and of his the facts Metropolitan exemplified Stipcich v. line of unlike that cases (48 Sup. where, be- Co., 512), U. 311 Ct. Life Insurance 277 S. time application policy, time of tween the mala- applicant discovered himself be afflicted with a serious provided dy, ulcer, in which it is duodenal and unlike those cases applicant good that shall be in health at the time of delivery payment premium. policy Mc- Kenzie Co., App. v. Mutual Ins. 26 Northwestern Ga. 225 Life (105 720). S. E. original held in opinion
We have
that there
evidence
jury
premi
from which the
find
was authorized to
that the first
actually paid;
being so,
following
um was
and this
cases
upon by
relied
the defendant are entirely
counsel
beside the
Scurry
625;
point:
Co.,
Cotton
Ins.
51
v.
States
Ga.
Metro
Life
politan
(93
App.
Ins. Co. v.
20 Ga.
706
Thompson,
E.S.
Life
299);
Fidelity
Association,
Reese v.
Mutual
Rehearing Gardner, denied. Townsend, J., concur. P.J., and
34146. McBURNEY v. WOODWARD.