National Life & Acc. Ins. Co. v. Dorsey

• Citation: 26 S.E.2d 654,69 Ga.App. 734
• Decision Date: 30 June 1943
• Docket Number: 30132.
• Court: Georgia Court of Appeals
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. DORSEY.

26 S.E.2d 654

69 Ga.App. 734

NATIONAL LIFE & ACCIDENT INS. CO. v. DORSEY.

No. 30132.

Court of Appeals of Georgia, Division No. 2.

June 30, 1943

Rehearing Denied July 27, 1943.

Syllabus by the Court.

Wm F. Buchanan and Mary J. Payne, both of Atlanta, for plaintiff in error.

F Lee Evans and Dillon & Rose, all of Atlanta, for defendant in error.

SUTTON Judge.

Lillie Mae Dorsey brought suit in the civil court of Fulton County against National Life & Accident Insurance Company on a policy of insurance which she had taken out on the life of her son, Lester Sims. The company defended on the ground that the insured made false and fraudulent representations as to his health, and fraudulently concealed material facts as to illness, it being alleged that, in the application for the insurance, the insured represented that he had suffered no illness except infantile paralysis when five years old, and that, while it was true that he had suffered from infantile paralysis, as represented, he wilfully concealed from the company that for several years prior to his application for the insurance he had also suffered from epileptic fits, and that this fact was material to the risk and its concealment was a fraud upon the company, by reason of which the insured fraudulently obtained the issuance of the policy. It was further contended that under the following clause in the policy: "No obligation is assumed by the Company prior to the date hereof. Except as elsewhere herein provided, if the Insured is not alive or is not in sound health on the date hereof *** in any such case, the Company's full liability shall be discharged by the payment of the sum of the premiums received hereunder"; the company's full liability was limited to a return of the premiums paid by the insured. There was a verdict for the plaintiff. The judgment overruling the defendant's motion for new trial was, on appeal, affirmed by the appellate division of the civil court, and the defendant excepted.

1. The application was not attached to the policy nor made a part of the contract, and therefore representations or concealments, although false and material to the risk, would not defeat recovery unless fraudulently made to obtain the insurance, the rule in such cases being that where the insured has made false and fraudulent statements as to matters that are material to the risk, or fraudulently concealed such matters from the insurer, for the purpose of obtaining the insurance, and has thereby induced the insurer to issue the policy, the policy is void, not as a matter of contract, but because it has been procured by fraud. Johnson v. American Nat. Life Ins. Co., 134 Ga. 800, 68 S.E. 731. Since the passage of the Act of August 17, 1906, Ga.L.1906, p. 107, Code, § 56-904, unless a correct copy of the application is attached to the policy, or contained therein, the application does not become a part of the policy or contract between the parties, and § 56-820 of the Code of 1933, in so far as it provides that representations in an application for insurance are considered as covenanted to be true, is modified by the Act of 1906. In § 56-822 it is provided that, "A failure to state a material fact, if not done fraudulently, shall not void the contract; but the wilful concealment of such a fact, which would enhance the risk, shall void the policy." It is insisted by the plaintiff in error that the evidence demanded a finding that at and prior to the time the application for the insurance was made, the insured was afflicted with epilepsy, that that fact was wilfully concealed from the company, and that its concealment materially increased the company's risk.

It appears from the evidence that the plaintiff, who was the mother of the insured and the beneficiary under the policy, applied for the insurance. The insured was not present when the application was prepared. The questions were propounded to the mother by the company's agent and her answers written down by him. The following questions and answers seem to be pertinent to the questions raised by the defendant: "21. Are you in good health? Yes. 22. Who is your Doctor? Dr. Allgood. 23. What illness, injury or accident have you ever had? Give details (over). 25. Have you ever had heart disease, asthma, tuberculosis, cancer, ulcers, diabetes, fits, kidney disease, syphilis, paralysis, rheumatism, sciatica, vertigo, etc? No." The insured's name was signed by his mother. On the back of the application appeared the following notation: "Remarks: Infantile paralysis at 5 years old. Arm is stiff in the joint. He is in good health. I have known him 18 months and think he is a good risk." This statement was signed by the agent who took the application, with the further notation following his signature: "If you want any further inspection send it back." The application was dated January 29, 1942. The policy was issued February 9, 1942. The insured died April 23, 1942.

Lillie Mae Dorsey testified that Lester Sims was her son by a former marriage. At the time the application was taken she was living on Sams Street in Decatur. Lester was at his grandmother's in Avondale. Minnie Sims was his grandmother. His father was John Sims. Lester's health was good. There was nothing the matter with him except infantile paralysis. His right arm was withered. "I told Mr. Chandler all about that. He saw the boy every week-end. Since he was five years old he hadn't been sick at all. He had never had any fits. I didn't tell Minnie Sims he had spells. He never did fall down and scratch the floor. That's the reason I couldn't understand how he got down there and had fits. He never had none at home, and I don't believe he had them down there. When I made this application I didn't tell Mr. Chandler the boy was subject to fits. The boy didn't have fits. I just told Mr. Chandler how my boy was. He said: 'I know that boy; that boy aint sick.' He said, 'nothing the matter with that boy,' so he wrote his application. My boy didn't have no fits. When I signed the application, I told him my boy would be sixteen in May. He was born in 1926. I didn't make a mistake in telling his age, I made a mistake in my own age. I didn't tell him my boy was thirteen."

G. F. Chandler, a witness for the defendant, testified that he had known Lester Sims for more than a year, and knew his father, John Sims, his grandmother, Minnie Sims, and his mother, Lillie Mae Dorsey. Lester had been living down at Minnie Sims' house over a year. He went there every two weeks, and saw Lester regularly about twice a month. His health apparently was good. Looked well and healthy. Had a paralyzed arm. "I took the application at Lillie Mae Dorsey's house. Lester was not present. I asked Lillie Mae all the questions, and put down the answers just as she gave them to me. I asked her about fits. She told me he had infantile paralysis when he was about five and hadn't been sick since. After I wrote the application, I went down to Minnie Sims' where Lester was. I went by to see him again and be sure he was all right. Minnie Sims lives about a block from Dr. Allgood's house. I have known Dr. Allgood about three years. I didn't go to see Dr, Allgood. The reason I went to Minnie Sims' was to OK Lester and be sure he was there and in good health. I found him down there. I put on the application: 'If you want further inspection send it back.' They didn't send it back to me. The company issued the policy and I started collecting the premiums."

Dr Allgood, also a witness for the defendant, testified that Minnie Sims lived about 560 feet from his home and worked for his wife, and that he had been seeing Lester Sims around there for four or five years. He was called down to Minnie Sims' to see him the day he died. They told him Lester had fallen in the branch. He found him wet all over, vomiting and frothing at the mouth, and unconscious. He was in an epileptic convulsion. It is recognized as a serious condition. Very few persons afflicted with epilepsy ever die under an epileptic convulsion, but it is liable to cause a brain hemorrhage, or heart exertion, from the convulsion. "I think the epilepsy was primarily the cause of his death. In my opinion he was not in sound health during a period of six months prior to his death. I never gave him a physical examination. As to what caused his death, I couldn't say, except that he had epilepsy, and that was the primary cause. What exactly caused it, I couldn't tell you. As to what I mean by the primary cause, he had a convulsion, which could have caused an extra heart exertion, or hemorrhage of the brain. Either one of those would have caused it. I was called about 12:30 p. m., and saw him about 2 p. m. He is supposed to have died about three or four that afternoon. I stayed about five minutes. I didn't give him a hyperdermic or anything at all. They said he fell in the branch. He was wet all over. Some of his clothing was wringing wet. I told them to put dry clothes on him, and keep him on his side so the froth...