Opinion
37409.
DECIDED DECEMBER 2, 1958.
Action on insurance policy. Albany City Court. Before Judge Jones. September 3, 1958.
Burt Burt, W. H. Burt, for plaintiff in error.
Jones Lee, contra.
1. Where a principal insurance coverage provision in a medical and hospital expense policy of insurance states that the coverage is a limited one and one restricted to expenses due to a disease originating after fifteen days from the date of the policy, it is incumbent upon the insured to allege that the disease causing the medical and hospital expense so originated. Reserve Life Ins. Co. v. Peavy, 94 Ga. App. 31 (2) ( 93 S.E.2d 580), and citations. In the absence of such an allegation the instant petition was subject to the demurrer urged and the court erred in overruling it.
2. The last amendment sought to excuse the making of the necessary allegation stated in the foregoing headnote by alleging that the agent of the insurance company knew of the disease of the ear with which the insured was afflicted at the time of the application for insurance and issuance of the policy and fraudulently omitted the information from the application. "The doctrines of implied waiver and of estoppel, based upon the conduct or action of the insurer, are not available to bring within the coverage of a policy risks not covered by its terms, or risks expressly excluded therefrom. . ." 29 Am. Jur. 690, Insurance, § 903; Quillian v. Equitable Life Assur. Society, 61 Ga. App. 138 (3) ( 6 S.E.2d 108); Life Casualty Ins. Co. v. Williams, 200 Ga. 273 ( 36 S.E.2d 753, 161 A.L.R. 686); Doubrly v. Carolina Life Ins. Co., 58 Ga. App. 178 ( 198 S.E. 76); Life Casualty Ins. Co. v. Carter, 55 Ga. App. 622 ( 191 S.E. 153), affirmed in 185 Ga. 746 ( 196 S.E. 415). The court erred in overruling the demurrers to the petition as finally amended for the reason that the amendment did not supply the deficiency in the allegations of the petition stated in headnote 1.
3. While the error in overruling the demurrers to the petition rendered all other proceedings nugatory, since the case goes back to the trial court and there may be an effort to amend the petition, it is our further duty to rule that, under the evidence, a verdict was demanded for the defendant since it indisputably showed that the cause of the disease originated before the time provided in the policy and not after. In this view we do not deem it necessary to rule on the various other grounds of the amended motion for a new trial.
The court erred in overruling the demurrers to the petition.
Judgment reversed. Quillian and Nichols, JJ., concur.
DECIDED DECEMBER 2, 1958.
Quincey D. Ramsey sued the Reserve Life Insurance Company to recover certain medical and hospital expenses, damages and attorney's fees, alleged to be due under the law and the terms of a policy issued to the plaintiff by the defendant. The principal and only pertinent insuring clause in the policy sued on is as follows: "Hereby insures the applicant, first named in the following schedule, hereinafter called the insured, and will pay, subject to all provisions, limitations and exclusions herein contained, the benefits provided herein for the expense of medical treatment and surgery incurred while this policy is in force on account of the insured and the members of the insured's family, if any, named in said schedule (all of whom, including the insured, are hereinafter called members of the family group) (b) resulting from sickness the cause of which originates while this policy is in force and more that fifteen days after the date hereof, except as provided in Parts 4 and 7, hereinafter referred to as such sickness." As to liability under the policy the original petition contained the sole allegation, "That the said policy was in full force and effect at the time of said hospitalization and that the contractual terms of the policy provided benefit payments to plaintiff for certain expenses incurred . . ." The defendant demurred to the petition generally, and specially as follows: "(2) The petition contains no allegations of facts sufficient and necessary to show that the claim for hospital payments is within the coverage of the policy of insurance sued on." The plaintiff then amended the petition by adding the following allegations: "Your petitioner alleges that two duly authorized agents of the defendant namely, Mr. Mitchell and Mr. Rykely, solicited the business of your petitioner and forwarded your petitioner's application for insurance, same being within the scope of their duties; and such agents undertook to prepare for your petitioner an application for insurance and willfully and fraudulently inserted in said application false answers to material questions and such perversion of the facts was the exclusive work and design of the said agents of the defendant in soliciting and forwarding the applications.
"Your petitioner further alleges that he and his wife gave to the said agents true answers to all of the questions propounded to them and your petitioner has been fraudulently misled and deceived by said agents as to the contents of the application and was ignorant that the said application contained false answers."
The defendant then demurred to the petition as amended, as follows: "1. Defendant renews all its grounds of demurrer and objections made to the original petition, now to the amendment, and to the petition as amended. 2. Defendant demurs to that portion of paragraph 10 alleging that defendant's agents `willfully and fraudulently inserted in said application false answers to material questions and such perversion of the facts', as general and loose allegations, consisting merely of the statement of conclusions, without averring the facts upon which the conclusions are based. Again, the particular alleged material questions are not stated, neither is it stated the alleged false answers that were given, and defendant is thus not put on notice of what it is charged, in order to make its defense thereto. 3. Defendant demurs to paragraphs 11 and 12 on the same grounds and objections made to paragraph 10." The court overruled these demurrers.
The plaintiff again amended the petition, as follows: "By striking all of paragraph 5 of the original petition and adding in lieu thereof the following: 5. That Mrs. Lottie T. Ramsey was hospitalized in the Georgia Baptist Hospital, Atlanta, Georgia, from May 29, 1957 until June 2, 1957, during which time she underwent an operation for an acute and aggravated condition of her mastoids, said operation being performed by Lester A. Brow, a licensed doctor of medicine. (a) Your petitioner alleges that although she had suffered from a mastoid condition prior to the issuance of the policy, such condition was not of sufficient severity to be disabling prior to the issuance of said policy and it would not have been such an affection of the body which deprives it temporarily of the power to fulfill its usual functions. Plaintiff further shows that said mastoid condition was never disabling to any extent until such aggravation, which occurred after the issuance of the policy; and therefore that portion of the insurance contract which excludes sickness, the cause of which originates before the policy was in force, does not apply to the mastoid operation of his wife as outlined above.
"(b) Your plaintiff further shows that even if said mastoid condition was such as might bar him from coming within the terms of the contract, your petitioner advised the agent, at the time the application for the policy was taken, that his wife had such a condition and the agent assured your petitioner that said policy would cover any hospitalization and doctor expense arising from such condition and therefore the company had knowledge of such previous mastoid condition, and such knowledge would amount to a waiver of this exclusion and the company is now estopped from attempting to set up this condition as a defense." The defendant then demurred to the petition as finally amended as follows: "1. Defendant renews all its grounds of demurrer and objections made to the original petition as amended, now to the second amendment, and to the petition as amended. 2. Defendant demurs to the second amendment upon the ground that no cause of action is stated therein, or in the petition as amended. The plaintiff here attempts to set up oral representations by the agent of the defendant at variance with the signed application, it not appearing that there was any emergency, or fraud practiced by the agent in procuring the signature of the insured to the application, or that insured was prevented from reading the same, and again, the plaintiff here seeks to extend the coverage of the insurance contract so as to include payment for losses and expense for a disease or illness originating before the date of the policy, and thus to vary the terms of a valid written contract. Again, the amendment now affirmatively discloses that insured's wife had the mastoid condition prior to the issuance of the policy, and that plaintiff was aware of the same, and plaintiff now claims a waiver by the insured to create a liability not created by the contract, and never assumed by the insurer under the terms of the policy."
The court overruled the foregoing and final demurrer. The defendant made a motion for a directed verdict which was denied. The jury found for the plaintiff the amount sued for and $100 attorney's fees. The amended motion for new trial and the motion for judgment notwithstanding the verdict, filed by the defendant, were denied. The defendant excepts to the judgment overruling its demurrers to the petition as finally amended, to the denial of its motion for a judgment notwithstanding the verdict and to the denial of its amended motion for new trial.