Metropolitan Life Ins. Co. v. Bugg

• Decision Date: 29 January 1934
• Docket Number: 23366.
• Citation: 172 S.E. 829,48 Ga.App. 363
• Parties: METROPOLITAN LIFE INS. CO. v. BUGG.
• Court: Georgia Court of Appeals

172 S.E. 829

48 Ga.App. 363

METROPOLITAN LIFE INS. CO. v. BUGG.

No. 23366.

Court of Appeals of Georgia, Second Division

January 29, 1934

Syllabus by Editorial Staff.

Willfully false representations in unattached application, where furnishing actual basis on which life policy was issued, will ordinarily avoid policy on theory that insurance was fraudulently procured (Civ. Code 1910, § 2471).

Where life insurer's agent knew true facts, insurer could not avoid policy by reason of its fraudulent procurement through false statements made in unattached application (Civ. Code 1910, § 2471).

Where sole issue was whether life insurer was liable for face amount of policy sued on, or merely for premiums paid, charge that, if plaintiff carried burden by preponderance of evidence, verdict should be for plaintiff for $250, face amount of policy, and, if not, it should not be for that amount, held not prejudicial to insurer, in view of instruction directing verdict for insurer and instructions specifying alternative forms of verdict.

Estoppel need not be pleaded.

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Suit by Christine Bugg against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Rodney S. Cohen, of Augusta, for plaintiff in error.

Isaac S. Peebles, Jr., and Nathan Jolles, both of Augusta, for defendant in error.

Syllabus OPINION.

JENKINS Presiding Judge.

The terms of the life insurance policy in the instant case appear to coincide with the stipulations of the policy set forth in the certified questions propounded to the Supreme Court in the case of Metropolitan Life Ins. Co. v. Hale, 177 Ga. 632, 170 S.E. 875, except that in the instant case it appears that there was a written application for insurance which, however, was not attached to the policy, whereas in the Hale Case the record in no wise indicated the existence of a written application. In that case there was no effort to prove fraud on the part of the insured, but the defense consisted in the effort to cancel the policy because the insured was not in good health at the time it was issued which would result in that case in the admitted liability of the insurer for the actual amount of premiums paid by the insured. In the instant case the defense as made by the pleadings consists of an attack upon the policy similar to that in the Hale Case, with a tender back of the premiums, and also an attack upon the policy on account of the fraud perpetrated by the insured in making false statements in the application for insurance relative to his physical condition, which, under the terms of the policy, would result in a forfeiture of the premiums paid by the insured. Held:

1. While it is true that the representations as made in an unattached application cannot be treated as "a part of the policy or contract" (Civ. Code, 1910, § 2471), and are not to be taken as covenants or warranties, still, if such statements furnished the actual basis on which the policy was issued, and they were knowingly and willfully false with the intent by the applicant to defraud the insurer, the insurer may ordinarily set up such facts as a means for avoiding the policy, not under and by virtue of the terms of the contract, but because the insurance is thus shown to have been fraudulently procured. Johnson v American Nat. Life Ins. Co., 134 Ga. 800 (1, 3), 68 S.E. 731; Bankers' Health & Life Ins....