Mutual Benefit Health & Accident Ass'n v. McCranie

• Decision Date: 30 December 1949
• Docket Number: No. 12637.,12637.
• Citation: 178 F.2d 745
• Parties: MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N v. McCRANIE.
• Court: U.S. Court of Appeals — Fifth Circuit

178 F.2d 745 (1949)

MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N v. McCRANIE.

No. 12637.

United States Court of Appeals Fifth Circuit.

December 30, 1949.

W. Colquitt Carter, Atlanta, Ga., Larry E. Pedrick, Waycross, Ga., for appellant.

Benjamin Smith, Jr., Waycross, Ga., for appellee.

Before HOLMES, WALLER, and SIBLEY, Circuit Judges.

WALLER, Circuit Judge.

In application for two insurance policies, one for $1,000.00 and one for $2,500.00, dated May 7 and May 10, 1947, the applicant, by his answers to Questions 13-17,¹ stated that he was sound physically and mentally, that he had never had any disease of the brain or nervous system, had not received any medical or surgical treatment or had any local or constitutional disease within the past five years, had never been operated on by a physician or surgeon, and that he understood and agreed that no insurance would be effected until the policy was accepted by him while in good health and free from injury. (R. 13, 14.) Relying upon the applications the policies were issued.

Within less than sixty days after these policies were issued the insured was killed in an automobile accident, and upon investigation the Company found that the insured had within two months prior to his application been medically discharged from the United States Army with a disability rating of 100%. The Army Medical Department recommended such discharge on the following diagnosis: "Concussion, cerebral, mild,² accidentally incurred when patient fell out of a swing at a carnival, Badtoelz, Germany, 25 July 1946." It appears from the official files of the Veterans Administration that within twelve months prior to the application the insured had fallen from a swing at a carnival in Germany and received an injury which was subsequently diagnosed as cerebral concussion. Shortly after this diagnosis he was returned to duty. Approximately a month later he was hospitalized because of severe headaches, weakness in his right extremities, and faintness. For diagnostic purposes exploratory holes were "burred" in his head in two places while he was under G. O. E. anesthesia. He was soon released from the hospital but his infirmities continued and shortly thereafter he was medically discharged.

Armed with these facts the Insurance Company sought a declaratory judgment as to its liability under the two policies. The Company moved for a directed verdict. This motion was overruled and the cause was submitted to the jury, who returned a verdict for the maximum liability under the policies. The Plaintiff's motion for judgment non obstante veredicto was denied.

The law of Georgia is clear on the question of the effect of misrepresentations on insurance policies. The Code of Georgia provides:

"56-820. (2479) Application, good faith in making. — Every application for insurance shall be made in the utmost good faith, and the representations contained in such application shall be considered as covenanted to be true by the applicant. Any variation by which the nature, extent, or character of the risk is changed shall void the policy."

"56-821. (2480) Misrepresentation, effect of. — Any verbal or written representations of facts by the insured to induce the acceptance of the risk, if material, must be true, or the policy shall be void. If, however, the party shall have no knowledge, but shall state on the representation of others, bona fide, and shall so inform the insurer, the falsity of the information shall not void the policy."³

The appellate courts of Georgia have held in an unbroken line that a material misrepresentation as to a known fact will avoid a policy if such misrepresentation changes the character or extent or nature of the risk. See: Sovereign Camp of W. O. W. v. Reid, 53 Ga.App. 618, 186 S.E. 759; Gabriles et al. v. Sun Life Assur. Co. of Canada, 70 Ga.App. 6, 27 S.E.2d 111; Preston v. National Life & Acc. Ins. Co., 196 Ga. 217, 26 S.E.2d 439, 450, 148 A.L.R. 897. In the last cited case the Supreme Court of Georgia, speaking through Justice Bell, states: "The rule is contained in the Code, and as we have seen, may be stated in four simple words,...