Aetna Life Ins. Co. v. Conway
| Decision Date | 30 September 1912 |
| Docket Number | 3,705. |
| Citation | 75 S.E. 915,11 Ga.App. 557 |
| Parties | ÆTNA LIFE INS. CO. v. CONWAY. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
An applicant for life insurance must act "in the utmost good faith" in disclosing to the insurer all things material to the risk about which information is sought. A misrepresentation in reference to any matter which materially affects the nature, extent, or character of the risk will void the policy; and the willful concealment of a material fact will have the same effect. Where an applicant for life insurance willfully conceals from the insurer the fact of a previous illness, such concealment will avoid the policy, if the disease was of such a character as to enhance the risk. The fact that the insured may have died a short while after the policy was issued, from a disease with which he was not afflicted when the policy was issued, does not conclusively show that the fact of the previous illness was not material within the meaning of the rule above announced.
Error from City Court of Atlanta; H. M. Reid, Judge.
Action by E. B. Conway against the Ætna Life Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed.
Smith Hammond & Smith, of Atlanta, for plaintiff in error.
Hill & Wright, of Atlanta, for defendant in error.
On February 4, 1909, William O. Conway made written application to the plaintiff in error for a policy of life insurance on his own life. The applicant was examined as to the condition of his health by the company's physician, and on February 8, 1909, the policy was issued in favor of the wife of the insured as beneficiary. A few days after the policy was issued the company received information which aroused its suspicions in reference to the physical condition of the insured, and in May, after several efforts had been made by the company's physician to obtain another examination the insured was finally again examined by the physician in May. From this examination it developed that the insured was suffering with Bright's disease, from which he died in September, 1909. As soon as the company ascertained that the insured had Bright's disease it tendered back the premium and demanded the surrender of the policy for cancellation. The insured refused to comply with this demand, and after his death his widow brought suit upon the policy. The company defended upon the ground that the insured had made material misrepresentations in his application, and had willfully concealed material facts which enhanced the risk, and that for these reasons the policy was void.
The application was copied in and made a part of the contract of insurance. The policy contained the following stipulation: "All statements made by the insured shall, in the absence of fraud, be deemed representations, and not warranties, and no such statement shall avoid the policy, or be used in defense to a claim under it, unless it is contained in the written application for this policy and copied hereon." The following representations were made by the insured in his application: "I do hereby declare that I am in sound health, and have no disease or ailment not fully set forth herein; that the statements and answers herein made (including those on the second page hereof) and signed by me are complete and true, and I agree that they shall form a part of the contract or policy issued by said company upon my life." In the application the insured was asked to give the names and addresses of all the physicians whom he had consulted within the last five years. He answered that he had consulted none, except Dr. J. B. Benson and Dr. G. W. Willett. He was further asked to state the particulars of each illness he had had during the last seven years, with the names of the attending physicians. His repIy was as follows: The insured was also asked: To each of which the insured answered, "No," as follows, to wit: "Habitual headache, No; liver complaint, No; neuralgia, No." It is undisputed that during the summer of 1907 the insured was ill for several weeks. He was examined and treated by one physician, who diagnosed the disease as probably acute Bright's disease. The symptoms were severe pains in the back, followed by fever, severe headache, and the swelling of the eyes, face, and ankles, and other parts of the body, and a loss of 25 pounds in weight. It is further undisputed that the statement of the insured that he had consulted no physician other than Drs. J. B. Benson and G. W. Willett, was untrue, and that he had in fact consulted and been treated by four or five other physicians at various times. It was also shown that the answer of the insured, that he had never had habitual headache, liver complaint, and neuralgia, were untrue; that as a matter of fact, not a great while before the policy was issued, he had been treated by one physician for habitual headache, and that at other times he had also been treated for liver complaint and neuralgia.
The testimony of the experts indicates that these disorders are symptomatic of Bright's disease. He was treated for habitual headache by Dr. Willett in 1908, and, while this physician was not positive that the insured had Bright's disease at the time, the condition of the insured was such as to indicate auto-intoxication, a symptom of kidney disease and an indication of Bright's disease. Neither did the examination of this physician, nor the examination of Dr. Todd, the company's physician, in 1909, disclose the presence of albumen in the urine; but the evidence is conclusive that a man might have Bright's disease, and the presence of albumen not be discovered upon an examination of the urine. In May, 1909, when Dr. Todd again examined the insured, he was in an advanced stage of Bright's disease. There was testimony of expert physicians that this disease might develop within a few weeks, and there was also evidence of nonexperts to the effect that at the time the policy was issued the insured was a robust man and apparently in sound health. While the evidence as a whole strongly points to the conclusion that the insured had Bright's disease at the time the policy was issued, and probably for some time before, there was perhaps enough evidence for the jury to find that he was in sound health at the time of the issuance of the policy. The case was submitted to the jury, and they found for the plaintiff. The defendant's motion for a new trial was over ruled.
The law applicable to the issues raised in the case is found in the following sections of the Code of 1910:
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