Gulf Life Ins. Co. v. Moore, 35330

• Decision Date: 01 October 1954
• Docket Number: No. 2,No. 35330,35330,2
• Parties: GULF LIFE INSURANCE COMPANY v. L. C. MOORE. . Division
• Court: Georgia Court of Appeals

Page 696

84 S.E.2d 696

90 Ga.App. 791

GULF LIFE INSURANCE COMPANY v. L. C. MOORE.

No. 35330.

Court of Appeals of Georgia. Division No. 2.

Oct. 1, 1954.

On Motion to Tax Costs Oct. 21, 1954.

Syllabus by the Court

1. A charge of a correct principle of law applicable to the case on trial does not constitute error requiring the reversal of the case as an expression of an opinion of what has been proved, under Code, § 81-1104, where the whole charge when construed together shows that the matters assumed to be proved in the charge complained of were left to the jury on the question of whether or not such facts had been established by the evidence.

2. A special ground of an amended motion for new trial which attacks the entire charge of the court is too vague and general to raise any question for decision by this court.

3. As used in life insurance policies, there is no material difference between 'sound health' and 'good health.' Accordingly, the charge of the court on good health was not error because the term 'sound health' was used in the policies.

4. It being well settled in this State that, to sustain a charge of fraud as to answers made in an application for insurance which is not attached to the policy 'the proof must be clear, cogent, convincing and certain,' it was not error for the trial court to charge the jury accordingly.

5. Since the brief of evidence discloses a material conflict in the testimony of the plaintiff and that of the agent for the insurance company who procured the application, the jury was authorized under Code, §§ 38-1802 and 38-1806 to disregard the testimony of the agent. Accordingly, a verdict was not demanded for the defendant, as contended in special grounds 1, 2, and 3, but was authorized as rendered for the plaintiff.

6. The trial court erred in charging Code, § 56-706 relating to the liability of insurance companies for attorney fees where the refusal to pay under the terms of the policy is in bad faith. Refusal to pay in bad faith means a frivolous and unfounded denial of liability. There were reasonable grounds for contesting the policies of insurance upon which this action was based.

L. C. Moore filed an action, against Gulf Life Insurance Company in the City Court of Newnan, as beneficiary of two life insurance policies, in the amounts of $500 each, on the life of his deceased wife, Twyman C. Moore, seeking to recover the face amount of the policies plus penalties and attorney fees. The defendant answered, defending on the ground that the policies were procured by fraud, in that the insured was not in sound health at the time the policies were issued but was afflicted with the same disease with which she died; that she failed to disclose in her applications for life insurance the true facts of her physical condition and made material misrepresentations which increased the risk, all of which constituted fraud; and that, had the defendant been informed of the insured's physical condition, it would not have issued the policies. A trial resulted in a verdict for the plaintiff for the face amount of the policies, interest, and attorney fees. The defendant filed a motion for new trial on the general grounds, which was later amended by the addition of 10 special grounds, and the denial of this motion is assigned as error.

Stonewall H. Dyer, J. D. Tindall, Frank Kemp, Atlanta, for plaintiff in error.

Lipford & Stripling, Newnan, for defendant in error.

TOWNSEND, Judge.

1. Special ground 4 of the amended motion for a new trial contends that the court erred in charging the jury as follows: 'I charge you that where an applicant for insurance represents in good faith that she was in sound health, and on the strength of such representations, and upon the opinion of the agent, the insurance company issued its policy, and it was in good faith accepted by the applicant, the policy will not be avoided by reason of the fact that the applicant was then affected with an incipient and fatal malady which at the time had not manifested itself, or in any way deranged, impaired, or affected the general soundness and healthfulness of the applicant.' This charge is correct as a principle of law, and was apparently quoted from the headnote in National Life & Accident Insurance Co. of Nashville, Tenn. v. Martin, 35 Ga.App. 1(2), 132 S.E. 120. Counsel for the defendant argues, however, that it is error as constituting an expression of opinion on the part of the court as to what had been proved in the case, in violation of Code, § 81-1104. This court has frequently recognized that the wording of a decision may, when given out of context in instructions to a jury, be misleading even though it represents a correct statement of the law; but after a consideration here of the charge as a whole, we do not believe the jury could have been misled into believing that the court was instructing them to find as a matter of fact that the plaintiff had proved these issues, but rather was instructing them to find that, where such facts were shown, they would not be sufficient to avoid the policy. This ground of the motion for new trial is without error.

2. Special ground 5, which complains of the charge as a whole, is without merit. Pryor v. State, 40 Ga.App. 225(2), 149 S.E. 177.

3. In special ground 6 error is assigned on the following instruction: 'Good health is a relative term and does not mean absolute freedom from physical infirmity, but only such a condition of body and mind that one may discharge the ordinary duties of life without serious strain upon the vital powers.' In special ground 7 error is assigned on the following: 'I further charge you in relation to good health, a recovery may be had notwithstanding that at the time the application for the policies of insurance were made, the insured was laboring under an infirmity of which she was ignorant and which did not interfere with the discharge of her ordinary duties of life.' In special ground 8 error is assigned on the following: 'Good health, illness and diseases must be considered in an application for insurance not in the right of scientific technical definition, but in the light of the insured's understanding in connection with which the terms are employed in the examination.'

These excerpts from the charge all contain correct rules of law, applicable to the main issue in this case, which was whether the insured was in sound health at the time the applications for the policies were made out, or whether she was not in sound health and made fraudulent misrepresentations for the purpose of obtaining the insurance. See, in this connection, National Life &amp Accident Ins. Co. of Nashville, Tenn. v. Martin, 35 Ga.App. 1(2), 132 S.E. 120; Atlanta & Birmingham Railroad Co. v. Douglas, 119 Ga. 658(2), 46 S.E. 867; National Life & Accident Ins. Co. of Tenn. v. Camp, 77 Ga.App. 667, 671, 49 S.E.2d 670. It is contended, however, that good health such as would enable one to perform the ordinary duties of life is not synonymous with 'sound health' as used in insurance law, and that the charges were therefore not adjusted to the case and were misleading to the jury. In Metropolitan Life Ins. Co. v. Chappell, 151 Tenn. 299, 269 S.E. 21, 24, it was stated: 'As used in life insurance policies, there is no material difference between 'sound health' and 'good health." In Tool v. National Life & Acc. Ins. Co., 130 Kan. 117, 285 P. 580, 581, the court suggested that, 'in view of the company's method of writing insurance without medical examination of the applicant, on nonexpert observation of the applicant by the solicitor, and the applicant's statements, sound health in the policy should be regarded, for all purposes, the same as good health in the application.' The words have frequently been used interchangeably in Georgia decisions. Progressive Life Ins. Co. v. Gazaway, 67 Ga.App. 339, 20 S.E.2d 189; Mutual Benefit Health & Accident Ass'n of Omaha, Neb. v. Bell, 49 Ga.App. 640(8), 176 S.E. 124; Atlanta & Birmingham R. Co. v. Douglas, supra. These grounds are without merit.

4. The charge excepted to in special ground 9 is as follows: 'To sustain a charge of fraud as to answers made in an application for insurance, the proof must be clear, cogent, convincing and certain'. The charge as given was correct, National Life & Accident Ins. Co. v. Falks, 57 Ga.App. 384, 389, 195 S.E. 463, and was not subject to the criticism that it nullified the court's charge relating to the preponderance of evidence. This ground is without merit.

5. Special grounds 1, 2, and 3, contending that a verdict for the defendant was demanded, will be considered in relation with the general grounds. The evidence in this case shows substantially the following facts: T. B. Davis, an acquaintance of the plaintiff beneficiary and insurance salesman for the defendant, called his attention to the company's $500 life insurance policy, and as a result both the plaintiff and Mrs. Moore took one out on an application made May 2, 1949. Mr. Davis later informed the parties that they could increase the amount, and Mrs. Moore made application for another $500 policy on October 3, 1949. Both policies were issued and the applications were not attached thereto. The plaintiff witnessed the first application and T. B. Davis the second. Both contained the following questions and answers: '19. Have you ever had any of the following diseases or impairments? (e) Of heart or blood vessels (as for example, high blood pressure, dropsy, angina, varicose veins, etc.) No. (j) Syphilis? No. 26. Are you...