Opinion
35784.
DECIDED OCTOBER 27, 1955.
Action on insurance policy. Before Judge Smith. Americus City Court. April 14, 1955.
Dykes, Dykes Marshall, T. O. Marshall, Jr., for plaintiff in error.
Claude N. Morris, contra.
The evidence authorized the verdict, and the trial court did not err in overruling the defendant's motion for new trial based on the general grounds only.
DECIDED OCTOBER 27, 1955.
Christine Brown brought an action against the Guaranty Life Insurance Company on two insurance policies issued by the defendant on the life of Geneva Sandals (Sandal). The petition alleged: that the first policy was issued on February 5, 1951, the second on September 22, 1952; that the insured died intestate on May 6, 1954; that the plaintiff was named as beneficiary in both policies; that on or about May 10, 1954, the plaintiff furnished the defendant with notice and proof of death of the insured and otherwise performed all the conditions imposed upon her by the policies; that the policies were in full force and effect at the time of the death of the insured; that more than sixty days had elapsed since the proof of death, etc., was furnished to the defendant; that the defendant had failed to pay the loss; and that such failure was malicious and was done with the intent to force the plaintiff into unnecessary litigation. Judgment was prayed for in the amount of the total of the two policies, plus a 25 percent penalty and attorney's fees in the amount of $250. The policies were attached to the petition as exhibits, as was a copy of a letter making demand on the defendant for payment.
The defendant in its answer admitted that the policies were issued, that the plaintiff was the beneficiary on both policies, and that the insured died intestate on May 6, 1954. It denied that proof of death, etc., had been furnished it or that the policies were in full force and effect at the time the insured died. It also denied that it had refused to pay the loss in bad faith and for further plea and answer alleged that the plaintiff, Christine Brown, had fraudulently procured the policies in the following manner: (1) She gave the home address of the insured as Americus, Georgia, whereas the insured had lived at Route 1, Smithville, Georgia, all of her life. (2) She signed the application to procure the insurance policies, alleging that the insured was in good health, when as a matter of fact the insured had been blind for approximately two years and had been mentally defective since her birth. (3) She represented in her application for the policies that the insured had no illness or disorder of the brain when as a matter of fact she (the insured) was a born cretin. (4) The policies were therefore fraudulently obtained by the plaintiff who knew that the insured was both mentally and physically ill and uninsurable. The answer further alleged that the amount of premiums paid on the policies had been paid in to the clerk of the trial court as a continuing tender.
On the trial of the case the plaintiff testified in substance: The deceased did not live with her but came and visited with her from time to time and spent the night, sometimes twice a week and sometimes less often. Geneva kept the plaintiff's children so that the plaintiff could work. The deceased was not married and left no children at the time of her death. Geneva was at the plaintiff's house when plaintiff took out the insurance policies with the defendant. Ernistine Robinson wrote them up. She was present at the time the applications were made out, but did not talk to Ernistine Robinson about the policies and only signed the application (in the place marked beneficiary). Ernistine Robinson did not ask her any questions about Geneva's health. Ernistine Robinson talked to Geneva about the policies, but plaintiff did not hear Ernistine ask Geneva any questions about her health. Ernistine delivered the policies to plaintiff, and Geneva would leave the money with her to pay the premiums. The policies were "paid up" at the time of Geneva's death.
On cross-examination the plaintiff testified in substance as follows: Geneva was approximately 19 years old when she died; she would come and spend the night and sometimes the weekend with the plaintiff and would keep the plaintiff's children so that the plaintiff could work; she didn't know whether or not the deceased attended school; the deceased lived in the country while plaintiff lived in town, and Geneva would come and visit and keep plaintiff's children so that she could work, inasmuch as the plaintiff's husband was blind; she signed her name to the application; Ernistine Robinson signed Geneva's name; she did not fill in any portion of the application; she didn't know whether or not Geneva was blind during the last two years of her life; Geneva tended to plaintiff's children during the last two years of her life and did not have to be led around; Geneva did not look like she was blind when taking care of the plaintiff's children.
It was stipulated that the sixty days' notice was given to the defendant as set forth in the petition.
Johnnie Lee Barnum, an undertaker, testified that the policies were given to him and that he filed the proof of death, etc., under the policies, with the defendant.
Hollis Fort, Jr., testified that he was a practicing attorney and that $250 is a reasonable attorney's fee in the present case.
J. H. Cornwell testified for the defendant that the deceased lived on his farm and from his observation was not developed mentally but was developed physically; that to his knowledge she could neither read nor write, but that he never had any personal contact with her and his opinion was based on his observation of her conduct over about ten years while she lived on his farm with her family.
S. R. Heys, the clerk of the trial court, testified that he had received and was holding the tender of the premium paid on the policies referred to in the defendant's answer.
Dr. J. C. Logan testified in substance that he was a practicing physician and that he knew a colored girl named Geneva Sandals who lived on the farm of Mr. Cornwell; that Mr. Cornwell phoned him a few days before the death of Geneva Sandals on May 6, 1954; that he treated her at that time for acute gastritis; that she could not retain water or anything else; that he was the attending physician at the time of her birth; that she was born cretin; that this is a mental defectiveness brought on by a deficiency of thyroid extract; that sometimes a patient can be helped by special medication, but that he did not know whether or not the deceased ever received any special medication; that he didn't know whether or not she ever went to school, or whether or not she could read or write, but that she definitely had a mental disorder. On cross-examination he testified that this one trip was the only trip he made to treat her.
The jury returned a verdict for the plaintiff in the face amount of the policies plus a penalty of approximately twelve and one-half percent of the face amount of the insurance policies and the attorney's fees as prayed for in the petition. The defendant filed a motion for new trial on the general grounds only which was overruled, and it is to this judgment that the defendant excepts.
The motion for new trial is based on the general grounds only. The defendant contends that the contracts of insurance were procured by fraud on the part of the plaintiff and the agent of the insurance company, and therefore the provision of Code § 4-310, "Where an agent shall conspire with the other party, his principal shall not be bound thereby, nor charged with knowledge of facts thus acquired by his agent," is controlling, and it contends that the evidence demands a finding that the policies were void. This argument is without merit because there was no evidence adduced on the trial of the case that the plaintiff conspired with or even talked to the agent of the insurance company with reference to obtaining the policies. There was evidence, however, that the agent of the insurance company did complete the applications for the policies in their entirety, without any aid or assistance or conversation with the plaintiff except to request that the plaintiff sign her name in the space marked "beneficiary." The evidence was uncontradicted that the defendant issued the insurance policies covering the life of the deceased, that the insured died while the policies were in effect and "paid up," and that the proper proofs of death, etc., were furnished. The defense set up by the defendant, that the plaintiff conspired with the agent of the insurance company to obtain the policies, was not supported by any evidence. See Stillson v. Prudential Ins. Co., 202 Ga. 79 ( 42 S.E.2d 121); National Life Accident Ins. Co. v. Sneed, 40 Ga. App. 131 (2, 3) ( 149 S.E. 68); Barber v. All American Assurance Co., 89 Ga. App. 270 ( 79 S.E.2d 48).
The defendant argues that the penalty and attorney's fees should be written off since there was no evidence to show that the refusal of the insurance company to pay the claim was in bad faith or frivolous. It is usually a question for the jury to determine whether the insurance company, in refusing to pay, acted in bad faith and subjected itself to the penalty and attorney's fees provided for by Code § 56-706. See Liberty Mutual Ins. Co. v. Atlantic Coast Line R. Co., 66 Ga. App. 826, 834 ( 19 S.E.2d 377), and cases cited; National Life Accident Ins. Co. v. Moore, 86 Ga. App. 618, 626 ( 72 S.E.2d 141). In the case last cited the insurance company made inconsistent defenses to the action against it on an insurance policy. In the case at bar the insurance company filed a plea that the policy was obtained by fraud on the part of the plaintiff. There was no evidence introduced on the trial of the case to substantiate this, and therefore the jury was authorized to find for the plaintiff on the issue raised by the pleadings that the insurance company's failure to pay the loss was in "bad faith." Accordingly, there is no merit in the motion for new trial based on the general grounds only.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.