The insured applied for a policy of life insurance with the National Life and Accident Insurance Company. In her application, in answеr to the questions, “Are you or have you ever been associated with any one having tuberculosis?” and “Have you ever had heart disease, asthma, tuberculosis?” the insured answered “No.” The application was not attached to and made a part of the policy. It was issued on January 15, 1934. It provided that it would not be enforceable against the insurer if the insured was not- in good and sound health at the time of its delivery to her. She died on August 2, 1934. The plaintiff was appointed guardian of -the person and property of the beneficiary named in the policy, the minor child of the insured. Upon refusal of the insurer to pay the claim, this suit was instituted. The insurer denied liability, and alleged that the policy was void, first, because the insured was not in good and sound health at the time of the delivery of the policy; and second, because she had knowingly made false answers to the above questions. On the trial it appeared that the insured was doing house work and laundry work at the time she made her application and for some weeks thereafter. Her sister with whom she lived, and the people for whom she worked, testified that she was in apparent good health at thе time she made the application, that she had had no previous serious illness, and had made no complaint of any illness for some weeks after making the application; that she visited a physician on February 17, 1934, complaining of headache and pains, and he examined her and told her to return later; that she returned on March 21, 1934, when the physician discovered that she had a temperature of about 102 and was suffering frоm pulmonary tuberculosis. He testified that there was no way of easily detecting
1. Under the evidence, and under the rulings in National Life & Accident Ins. Co. v. Carter, 46 Ga. App. 1 (
2. The defendant contends that the judge erred in charging the jury that it was necessary for it to show that the insured had' “intentionally” made false answers to the questions propounded in the application, because the question оf intent was not involved; thus making it incumbent on the defendant to show that the insured had intended to defraud it by making such false answers. The application was nоt attached to and made a part of this policy. This being true, the representations made by the insured in answering questions as to present statе of health, previous illness, and other matters, will not be considered as warranties or covenants by the insured, and the policy will not be avoided on account of the unti uthfulness of such statements, as a matter of contract, even where material to the risk; but if it be made to appear that the insured had made such false statements for the purpose of fraudulently inducing the insurer to issue the. policy, then the policy could be avoided on account of its fraudulent procurement. Johnson v. American National Life Ins. Co., 134 Ga. 800 (
3. The charge fairly and fully submitted the questions to the jury; and in the absence of a special request, it was not error for the court to fail to charge that “actual fraud consists in any kind of artifice by which another is deceived,” and that “fraud may not be presumed, but, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence.” (Code of 1933, §§ 37-702, 37-706.)
4. The verdict was authorized by thе evidence; and no error of law appearing, the judge did not err in overruling the motion for new trial, and the appellate division of the trial court properly affirmed that judgment.
Judgment affirmed.