11 Ga. App. 539 | Ga. Ct. App. | 1912
Hazel Thomas,.by her next friend, brought suit .-against the Eome Insurance Company for $180, besides interest, claimed to be due her as beneficiary of an insurance policy upon the life of her mother. It was admitted that the policy was issued by the company and the premiums paid up to and including September 26, 1910; that the insured died on October 31, 1910, and that demand for payment had been made by the beneficiary, and had been refused. There was no contradiction of the evidence to the •effect that the application was taken by one J. E. Sharpe, who was an agent of the company; that the policy was issued August 1, 1910; that the premiums were regularly paid when due, up to and including September 26, 1910; that the next premium* was due October-3, 1910; that the insured died of pellagra, and had pellagra two years before her death, and had been attended by physicians for it, but that she was not afflicted with any other disease or complaint. There was sharp conflict in the testimony as to whether the agent — Sharpe—had notice at the time he took the policy that the insured had pellagra. The evidence was also in conflict as to whether the assured signed the application and the physician’s certificate. There was positive testimony in behalf of the plaintiff that the assured did not sign either the application or the medical examiner’s report, — that the signatures there appearing were not her genuine signatures. The defendant produced evidence to the effect that its agent had no notice of the ill health of the assured, and that no other agent of the company had any reason to suspect that the assured was not in good health. The defendant contended that the policy lapsed for non-payment of premiums, and the evidence as to this point was in conflict. The evidence on the part of the plaintiff was that the insured died on October 28, 1910, while there was testimony in behalf of tbs defendant that she did not die until October 31, 1910. Tba„ clause of the policy pertinent to this issue was that “Should tba death of .the insured occur while
Summarizing the material issues of fact, only three were presented: (1) Did the company, at the time the application was taken, have notice that the insured had pellagra? (2) Did the insured die on October 28, or on October 31, 1910? (3) Did the insured make any material misrepresentations with intent to defraud the insurance company by inducing it to issue the policy? The evidence on behalf of the plaintiff as to each of these issues was sufficient to sustain, as matter of fact, the finding of the jury; and, therefore, the question as to whether the trial court erred in refusing a new trial depends upon the general assignment of error, that the verdict is contrary to law, and those specific assignments of error in which complaint is made that the court erred in the admission of certain testimony, in instructions to the jury,- and in refusing to instruct as requested.
1. It is insisted that the court erred in permitting the witness Ellene Thomas, over the objection of the defendant that agency could not legally be shown by proof of declarations of the alleged agent, and that the proposed evidence was hearsay, to testify: “I offered to pay certain premiums to a man who.said his name was Wright and was an agent of the company, but he declined to receive the unpaid premiums. He said the policy had lapsed.” Proof of agency can not be made by mere declarations of the alleged agent, and if the evidence in question stood alone, the objection would be meritorious. The court, however, stated that the testimony was admitted to be considered in connection with other testimony in the case, to enable the jury, upon consideration of the testimony as a whole, to determine whether Wright was the agent, and that the agency could not be. proved by declarations of the alleged agent alone. By reference to the brief of testimony it appears that the man who said his name was Wright, and who another witness said
While declarations of an alleged agent are not admissible to prove .agency, still the error of permitting a witness to testify that a named person said he was the agent of another is immaterial when the statement is made in connection with the recital of such facts and circumstances as would fully authorize the conclusion that he did in fact sustain that relation to the alleged principal. Where the extraneous circumstances, independently of and without regard to the declarations of the agent himself, conclusively tend to establish the fact of his agency, his declarations, though inadmissible if standing alone, may, as part of the res gestse of the transaction, be considered.
2. It is insisted’ that the court erred in failing to charge the
Even if the first clause of the request to charge is correct, the judge could not instruct the jury that if the evidence showed that the assured had been attended by a physician, and she suppressed that fact when asked with reference thereto, she could not recover; for it was in the province of the jury to say whether, as a matter of fact, the agent of the company had been notified that the proposed assured was suffering with pellagra. It was for the jury to. say whether or not pellagra is an incurable disease; apd it was for' the jury to say, if they found the truth to be that the assured lfad pellagra and the agent of the company knew it at the time he took the application, whether any misrepresentation the assured may have made as to the condition of her health was material or fraudulent. A request for an instruction upon the principle which the’ plaintiff in error sought to have presented to the jury might have* been so framed as to have been a complete statement of the principle as applicable to the evidence; but “unless the charge is itself a complete statement of the principle involved, without requiring addition or alteration to make it perfect, a failure to give it will not require a new trial.” Head v. Bridges, 67 Ga. 223 (4).
3, 4. In two grounds of the motion for a new trial complaint is. made of instructions of the court under which notice to an agent of an insurance company of material facts affecting the risk was imputed to the company; and as these two grounds concern the same, matter, we shall treat them together. Exception is taken to an. instruction to the effect that the knowledge of the agent was the knowledge of the company, and if the agent knew, at the time that the application was made, that the assured had a fatal disease, and,, notwithstanding this, the policy was issued, a recovery would not. necessarily be defeated; also to the following charge: “If the agent of the company had notice before and at the time of taking
In the policy which is the subject-matter of this suit it is stipulated that “no obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health;” and the point is urged that as the evidence is undisputed that the insured was not in good health on the date specified, but, on the contrary, was practically in a dying condition, as an effect of an incurable disease, there could be no recovery on the policy.
In other portions of the charge of the court all of the contentions of the defendant, so far as they are supported by the law, are fairly presented, but the trial judge took the view (and, we think, cor