Opinion
40275.
DECIDED JANUARY 24, 1964. REHEARING DENIED FEBRUARY 13, 1964.
Action on insurance policy, etc. Wayne Superior Court. Before Judge Flexer.
Wm. Henderson, Ronald F. Adams, W. A. Davis, Jr., for plaintiff in error.
Albert E. Butler, contra.
1. Under the provisions of the Act of 1957 (Ga. L. 1957, pp. 224, 234; Code Ann. § 6-919), judgments rendered in multiple actions which involve the same parties and the same issues and which are consolidated for purposes of trial in the court below may be reviewed by a single bill of exceptions.
2. A finding was not demanded that the policies of insurance sued upon were procured by wilful and fraudulent misrepresentations of the insured in the application for the same, as contended by the defendant insurer in its answers to the plaintiff's petitions, and the general grounds of the amended motion for new trial are without merit.
3. The sole special ground of the amended motion for new trial is too incomplete to present any question for consideration.
DECIDED JANUARY 24, 1964 — REHEARING DENIED FEBRUARY 13, 1964.
Erie Blanton, as the named beneficiary in two policies of life insurance issued by the defendant insurance company on the life of James E. Prather, deceased, brought separate suits in the Superior Court of Wayne County to recover the face amount of said policies, including double indemnity arising from accidental death as provided for in one of the policies sued upon, plus attorneys' fees and the statutory penalty for bad faith.
The defendant insurance company filed an answer to each petition in which it asserted by way of defense that the policies sued upon had been issued to the deceased insured upon written application made by him on October 11, 1960, which application contained the following questions and answers with reference to his health history:
"22. Has person proposed any symptoms of sickness or physical or mental impairment? No.
"23. Has person proposed had medical, hospital or surgical treatment in last 5 years? No.
"24. Has person proposed been advised to have operation or treatment that is not completed? No.
"25. Has person proposed ever had insanity? No."
It was alleged that the answers to said questions were false and fraudulent and material to the risk; that James E. Prather knew at the time said answers were made that same were false and fraudulent, but made them for the purpose of inducing the defendant to issue said policies; that the insured at the time of signing the application for said policies of insurance was and had been for several years suffering with a serious mental disorder for which he had received treatment in Federal hospitals and in Milledgeville State Hospital; that said condition was material to the risk assumed by the company; and that the insurance company would not have issued the policies if the questions in said application had been truthfully answered.
The suits were tried together and the jury returned separate verdicts finding for the plaintiff on each policy, there being no award of damages for bad faith; and separate judgments were entered. The defendant filed separate motions for new trial on the usual general grounds and thereafter filed one amendment which contained a single special ground. The trial court denied the amended motion for new trial and the defendant excepted in a single bill of exceptions.
The plaintiff has filed a motion to dismiss the bill of exceptions on the ground that the defendant could not seek a review of these cases by one bill of exceptions.
1. The motion to dismiss requires consideration of an Act of the General Assembly (Ga. L. 1957, pp. 224, 234; Code Ann. § 6-919), which reads in part as follows: "Whenever two or more persons are defendants or plaintiffs in an action and a judgment, verdict, or decree has been rendered against each of them, jointly or severally, said plaintiffs or defendants, as the case may be, shall be entitled to file joint bills of exceptions, motions for new trial, motions in arrest, motions to set aside, and motions for judgment notwithstanding the verdict, without regard to whether such parties have a joint interest, or whether the cases were merely consolidated for purposes of trial."
This court has interpreted this statute in Scales v. Peevy, 103 Ga. App. 42 ( 118 S.E.2d 193), in which we said at page 45, "It is obvious that the intent of the General Assembly in enacting this statute was to allow a joint bill of exceptions in those instances where two cases were consolidated for purposes of trial. (Emphasis supplied). This authorizes a procedure which upon numerous occasions has been refused by decisions of this court and of the Supreme Court. Its beneficent purpose must not be negated by the application of obsolescent decisions." The Scales case has been followed and cited with approval in the cases of Columbus Plumbing, c. Co. v. Home Fed. Sav. c. Assn., 104 Ga. App. 36 ( 121 S.E.2d 62); Turner v. Maryland Cas. Co., 104 Ga. App. 693 ( 122 S.E.2d 479); and Sun Insurance Office, Ltd. v. Guest Camera Store, Inc., 108 Ga. App. 339 ( 132 S.E.2d 851).
In the case under consideration there were two separate petitions filed by the same plaintiff against the same defendant, based on insurance contracts issued on one application made by the insured. The determining issue in both cases was whether or not the insured knowingly answered falsely certain questions in the application which were material to the risk. The cases were consolidated for trial before a jury which, after hearing the evidence and arguments, rendered two verdicts differing only in the amount involved in each contract.
As pointed out in Scales and Turner, supra, if the cases involve the same issues and are consolidated and tried together in the court below, the use of one bill of exceptions to complain of the judgments is authorized and sufficient. While the language used in the statute might indicate the use of a single bill of exceptions only where there are multiple plaintiffs or multiple defendants or both, our interpretation of this Act in the Scales and subsequent cases has not indicated such a restricted view.
The cases under consideration, involving the same parties, the same issues, and consolidated for trial in the court below, should be reviewable here by a single bill of exceptions. The motion to dismiss is therefore overruled.
2. The application for the policies of insurance sued upon was not attached to and made a part of the contracts of insurance; and said policies could not therefore be avoided because of any false representations made by the insured, though material to the risk, unless the act of the applicant for insurance was fraudulent. Progressive Life Ins. Co. v. Gazaway, 67 Ga. App. 339 ( 20 S.E.2d 189). It was thus incumbent upon the defendant insurer in order to avoid the policies to prove that the same were fraudulently procured by wilful and false statements as to matters material to the risk in the application or the fraudulent concealment of such matters made by the insured for the purpose of obtaining the insurance, as alleged by way of defense in the insurer's answers to the plaintiff's petitions. Johnson v. American Nat. Life Ins. Co., 134 Ga. 800 ( 68 S.E. 731); National Life c. Ins. Co. v. Dorsey, 69 Ga. App. 734 ( 26 S.E.2d 654).
While it is strongly contended by counsel for the defendant insurance company that the evidence adduced on the trial of this case demanded a finding that the policies in question were fraudulently procured by wilful and false answers given by the insured to the four questions in the application which were set forth in the answers to the petitions, an examination of the record before this court fails to disclose any evidence which would authorize the finding that the answers given by the insured to questions 22, 23 and 24 were false and untruthful. There is no evidence that the insured at the time of the application had any symptoms of sickness or physical or mental impairment; that he had had medical, hospital or surgical treatment in the five-year period preceding the application; or that he had been advised to have an operation or treatment which had not been completed.
With regard to the remaining question in the application, counsel for the defendant primarily relies upon the contention that an exemplified copy of a lunacy commission issued by the Court of Ordinary of Crisp County on December 1, 1952, in which one James E. Prather, Jr., was adjudged insane and ordered committed to Milledgeville State Hospital or Oliver General Veterans Hospital at Augusta, Georgia, was admitted into evidence as "Defendant's Exhibit 3," along with the testimony by deposition of Wayne Daniel, Vital Statistical Analyst of Milledgeville State Hospital, that a James E. Prather, Jr., was admitted to the hospital on December 2, 1952, and remained there until June 5, 1954, when he was furloughed; and that said evidence conclusively established that the answer to question number 25 was falsely and wilfully given.
"Defendant's Exhibit 3," however, as contained in the record before this court, merely follows the brief of evidence and the order of approval thereon, and contains no verification or identification by the trial judge; and under well settled decisions of the appellate courts of this State, said exhibit, which was not contained or briefed in the approved brief of evidence or in the certified bill of exceptions or in the approved grounds of the motion for new trial, and which was not specially verified or identified by the trial court or copied or set out as an exhibit in the pleadings, is not properly a part of the record in this court and cannot be considered in ruling on the general grounds. Warnell v. Ponder, 54 Ga. App. 1 (2) ( 187 S.E. 261), and cases therein cited. It does appear from the record that this evidence was objected to by the plaintiff on the grounds that there was no showing that the James E. Prather, Jr. referred to in the lunacy commission and in the testimony of Mr. Daniel was the same person as the insured and the trial court in admitting said evidence expressly ruled that this was a question for the jury; and in any event it cannot be said that a finding was demanded that said persons were one and the same.
Under these circumstances and upon a careful review of the record before this court, it cannot be said that a finding was demanded that the policies sued upon were fraudulently procured by wilful and false statements of the insured in the application for insurance; and the general grounds of the motion for new trial are therefore without merit.
3. The sole special ground of the amended motion for new trial which assigns error on the failure of the trial court to give in charge to the jury without request certain enumerated principles of law "raised by the pleadings and evidence" is too incomplete to present any question for consideration in that this ground neither sets forth any pleadings and evidence which would require the giving of the enumerated charges nor points out where in the record the same could be found. Fuller v. Self, 107 Ga. App. 664, 665 (2) ( 131 S.E.2d 241); Whaley v. SimGrady Machinery Co., 218 Ga. 838 (2) ( 131 S.E.2d 181).
Judgment affirmed. Felton, C. J., Bell, P. J., Hall, Eberhardt, Russell, and Pannell, JJ., concur. Nichols, P. J., and Frankum, J., dissent.
I must dissent from the ruling made in the first division of the opinion which overrules the plaintiff's motion to dismiss the writ of error. I therefore express no opinion as to the correctness of the rulings made thereafter.
"Where two cases between the same parties are consolidated merely for the purposes of trial, and separate verdicts are returned against the losing party, who thereupon makes in each case an independent motion for a new trial, the proper practice, in the event both of his motions are overruled and he desires to except to the judgments thereon, is to sue out separate writs of error." Harris v. Gano Jennings, 117 Ga. 950 (1) ( 44 S.E. 8). In McCrary v. Salmon, 192 Ga. 313 ( 15 S.E.2d 442), the above case was distinguished upon the ground that an amendment filed before trial converted both cases into an action in equity seeking specific performance. In 1957 the General Assembly passed an Act (Ga. L. 1957, pp. 224, 234; Code Ann. § 6-919), which reads in part as follows: "Whenever two or more persons are defendants or plaintiffs in an action and a judgment, verdict, or decree has been rendered against each of them, jointly or severally, said plaintiffs or defendants, as the case may be, shall be entitled to file joint bills of exceptions, motions for new trial, motions in arrest, motions to set aside, and motions for judgment notwithstanding the verdict, without regard to whether such parties have a joint interest, or whether the cases were merely consolidated for purposes of trial."
This Act deals with separate parties to a single action or separate parties to multiple actions where the cases are consolidated for the purpose of trial and involve only one cause of action. See Scales v. Peevy, 103 Ga. App. 42 ( 118 S.E.2d 193). It does not deal with multiple actions on different contracts between the same parties where the cases are consolidated for the purpose of trial and separate verdicts and judgments are rendered in each action. In such cases this court is bound by the holding of the Supreme Court in the case of Harris v. Gano Jennings, 117 Ga. 950, supra, and similar cases. See also Wilson v. Davis, 218 Ga. 643 ( 129 S.E.2d 910). The writ of error in the present case should be dismissed.
Frankum, J., concurs in this dissent.