Summary
indicating that a policy must have lapsed in order for representations in the reinstatement application to be material
Summary of this case from Fid. & Guar. Life Ins. Co. v. ThomasOpinion
29141.
DECIDED SEPTEMBER 30, 1941.
Complaint on life policy; from Fulton civil court — Judge Carpenter. April 17, 1941.
Paul W. Hughes, for plaintiff.
William F. Buchanan, Truett Brookshear, for defendant.
1. "A wilful misrepresentation of material facts, made by the assured in the application for reinstatement, to induce the reinstatement of a policy of life insurance which has lapsed, will void the policy."
2. "Under the evidence a finding was demanded that the reinstatement of the policy which had lapsed for non-payment of a premium should be set aside and canceled, because obtained by untrue answers to questions contained in the application, and because the misrepresentation was as to material facts."
3. Under the evidence a finding was demanded that neither the unsound health of the applicant for reinstatement of the policy nor the untruthfulness of the answers made by the applicant, material to the risk, were known by the insurer.
4. The court did not err in overruling the motion for new trial.
DECIDED SEPTEMBER 30, 1941.
Anna Smith brought an action to recover on an insurance policy in which she was named the beneficiary of her deceased husband, Edward Smith. The policy was issued on September 12, 1938, while the insured was a resident of the State of Maryland. The premiums were payable weekly. The premium which matured September 11, 1939, was not paid, and no premiums were paid during the months of October, November, and December of the year 1939. The policy accordingly lapsed for non-payment of premiums. The insured returned to Woodville, Georgia, on January 13, 1940. He made application to reinstate the policy under the following provision: "If any premium required by this policy is more than four weeks, but less than one year, in arrears, and its cash-surrender value has not been paid, all rights lost by such default will be restored, and the policy reinstated upon written application of the insured, furnishing evidence of insurability satisfactory to the company, and the payment of all premiums in arrears." The insured, as required by the policy, in order to revive it, paid the past-due premiums and made written application therefor. The application for revival contained the following statements: "I hereby declare that I am the person who was formerly insured under the above named policy; and that, having allowed it to become lapsed, I wish to revive it. I ask a revival of my policy with the understanding that it will not be in force (although I now pay the arrears) until the company shall have approved this application and evidenced same by endorsement on my policy, and that my policy, if revived, will only be in such benefit as provided by the rules of the company. 'Are you in good health?' `Yes.' `Have you been attended by a physician or been a patient or inmate of any institution for the treatment of physical or mental disease? (If so, give name and address of physician or institution, date of treatment, and for what disease.)' `No.' Dated January 13th, 1940. Witness, D. R. Terrell. Applicant's signature, Edward Smith." The policy was revived on January 29, 1940. The insured died on February 27, 1940. This suit was instituted for the face value of the policy. The defendant by its answer as amended alleged that it was not liable, for the reason that the insured wilfully misrepresented a material fact as to his having been attended by a physician, which fact, if not so concealed, could and would have led to the discovery of the true condition of his health, of which fact the company was unaware; and therefore that the company was not bound under the policy.
Substantially it appears from the evidence that the application for revival was witnessed by an agent of the company. Three doctors were introduced as witnesses. Dr. C. M. Barber testified: "I knew one Edward Smith, colored. I was his physician. He is dead. Prior to his death I treated him — well, about, I imagine, some two months previously. He came in my office, and I examined him and sent him to the health office, and then from then on. Doctor Johnson told me he would not sign the death certificate unless I put in the certificate that tuberculosis was a contributing cause, that they had a positive diagnosis from the State Health Department that this man did have tuberculosis; and he said it would have to go in as a contributing cause. I thought he had tuberculosis. My conclusion that tuberculosis was a contributory cause was that he might have been coughing and produced strangulated hernia." Dr. J. A. Johnson testified: "I am a licensed physician but I am doing public health work. Edward Smith was in the clinic on the 3rd of October, 1939, at which time he had an x-ray made of his chest. That clinic was held in my office in the Greene County Department of health office on the 3rd of October, I believe is the date, 1939, according to the records I have here. . . Dr. Bush fluoroscoped him, then he made an x-ray film for a permanent record. . . The x-ray pictures were sent to the State Department of Health. The x-ray number is 0419 which was taken at that clinic." Dr. H. C. Schenck testified: "I am director of the division of tubercular control for the Georgia Department of Public Health. I have been with the Department of Public Health . . about ten years. I have specialized in tuberculosis control or treatment for about fifteen years. I am a regularly licensed physician. I was admitted to practice medicine in 1901. In my department we do hold clinics for the examination of patients suspected of being sufferers from tuberculosis. We have a portable x-ray unit for that purpose. My department conducted a clinic in Greensboro, Georgia, on the 3rd of October, 1939. At that clinic an x-ray was made of a negro by the name of Edward Smith. His age and address as given to the department, age twenty-five, address route 1, box 45, Woodville, Greene County, Georgia. An x-ray was made of him at that time. I have the x-ray picture of Edward Smith before me. It shows widespread involvement of both lungs, more extensive on the left, which we concluded from the picture, history, and report of laboratory findings, was for advanced active pulmonary tuberculosis, in which the prognosis was believed unfavorable. That is, the possibility of cure or recovery unfavorable. We advised strict bed care, and suggested that sanitorium treatment might be advisable for some lung collapse measured on the left, in spite of widespread pathology, or diseased condition. Tuberculosis is recognized as a serious disease. From the condition of his lungs as disclosed by the x-ray, I would say his chances of recovery appeared to be unfavorable. . . As is disclosed by the x-ray picture, I don't see how he could be in good health. Judging by the history that we had his health was poor on October 3rd, 1939."
The jury returned a verdict for the defendant. A motion for new trial was denied and the plaintiff excepted.
We think there was no error in the judgment. It is clear to us from the evidence, under the provisions of the policy and the application for reinstatement, that the insured wilfully misrepresented a material fact on which the company relied, and that the company was within its rights in refusing to pay. The verdict was amply sustained by the evidence. This case is controlled by the principles announced in Phillips v. New York Life Insurance Co., 173 Ga. 135 (2) ( 159 S.E. 696): "A wilful misrepresentation of material facts, made by the assured in the application for reinstatement, to induce the reinstatement of a policy of life insurance which has lapsed, will void the policy." Also controlling is New York Life Insurance Co. v. Hollis, 177 Ga. 805 (2) ( 171 S.E. 288): "Under the evidence a finding was demanded that the reinstatement of the policy which had lapsed for nonpayment of a premium should be set aside and canceled, because obtained by untrue answers to questions contained in the application, and because the misrepresentation was as to material facts." The evidence was uncontradicted that the insured had consulted Dr. Barber who sent him to a clinic for examination, and that he died within less than a month from the date of the renewal of the policy of the disease discovered by the clinic test. The attorney for the plaintiff contends that since it does not appear that the deceased was treated by a physician before the application for revival was made, and since it does not appear that the deceased knew of his condition, and since the application for revival was not attached to and made a part of the policy, that the plaintiff is entitled to recover. We find no decision to sustain such contentions under the facts of this case. We find no evidence in the record which intimates that the agent of the company who received the application and witnessed the signature of the deceased thereon had any knowledge that the deceased had consulted Dr. Barber, or had been to the clinic, or that this agent had any reason to suspect that the deceased had done so. Therefore, the authorities on which the plaintiff relies, involving cases where the physical condition of the applicant was material and was known to the agent, do not apply to case based on facts such as appear in the instant case. See in this connection National Life Accident Insurance Co. v. Fischel, 6; Ga. App. 645 (9 S.E.2d 192); National Life Accident Insurance Co. v. Strother, 53 Ga. App. 241 ( 185 S.E. 373).
The plaintiff cites, in support of her contention that the court erred in denying a new trial, Interstate Life Accident Co. v. Bess 35 Ga. App. 723 ( 134 S.E. 804); Gulf Life Insurance Co. v. Le Croy, 181 Ga. 243 ( 182 S.E. 378); Southern Life Insurance Co v. Logan, 9 Ga. App. 503 ( 71 S.E. 742); National Life Accident Insurance Co. v. Lee, 46 Ga. App. 4 ( 166 S.E. 253); John Hancock Mutual Life Insurance Co. v. Yates, 50 Ga. App. 713 ( 179 S.E. 239); Metropolitan Life Insurance Co. v. Bugg, 48 Ga. App. 363 ( 172 S.E. 829); Mutual Benefit Health c. Asso. v. Bell, 49 Ga. App. 640 ( 176 S.E. 124). Since we have set out in detail the material facts and the principles of law applicable thereto in this opinion we do not think it necessary to go into detail in discussing the cases cited by the plaintiff in error. Suffice it to say that the issues which were submitted under the facts involved in those cases were not at all similar to those presented by the facts in this case. There is no conflict between the authorities cited and the opinion in the instant case. The plaintiff seems to overlook the fact that the gist of the issue in the case at bar is that the deceased was asked if he had been attended by a physician, and he answered "No." This was a material misrepresentation. There is nothing to show that the company knew this answer was untrue or that it was not voluntarily and wilfully made for the purpose of obtaining a revival of the policy. The reinstatement of the policy was voided thereby. The evidence demanded such a finding. The assignments of error under the general grounds are without merit. Since the assignments of error in the amended motion are not argued and insisted on they are considered as abandoned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.