Jefferson Standard Life Ins. Co v. Henderson, (No. 18040.)
| Decision Date | 17 January 1928 |
| Docket Number | (No. 18040.) |
| Citation | 141 S.E. 498,37 Ga.App. 704 |
| Parties | JEFFERSON STANDARD LIFE INS. CO. v. HENDERSON. |
| Court | Georgia Court of Appeals |
Rehearing Denied Feb. 18, 1928.
(Syllabus by the Court.)
Error from Superior Court, Hancock County; Jas. B. Park, Judge.
Suit by Mrs. James C. Henderson against the Jefferson Standard Life Insurance Company. Judgment for plaintiff, defendant's motion for new trial was overruled, and defendant brings error. Reversed.
Bryan & Middlebrooks and John A. Dun-away, all of Atlanta, and Allen & Pottle, of Milledgeville, for plaintiff in error.
G. Lee Dickens, of Sparta, and Sibley & Sibley, of Milledgeville, for defendant in error.
BELL, J. Mrs. James C. Henderson brought suit against Jefferson Standard Life Insurance Company on an insurance policy issued to Paul F. Henderson, in which she was named as beneficiary. The defendant pleaded that the policy was void, both because of fraud and because of material misrepresentations in the application. On the trial the jury returned a verdict in favor of the plaintiff. The defendant moved for a new trial, which was refused and the movant excepted.
It is our opinion that the evidence demanded a verdict in favor of the defendant, and therefore that the court should have granted a new trial upon the general grounds of the motion. The application, which was signed by the insured, was attached to, and made a part of, the policy. It contained, among others, the question, "Have you been disabled or received medical or surgical attention within the past five years?" to which the insured answered, "No." It also contained questions as to whether the insured had suffered from any of named diseases, to which in each case the answer was in the negative. Finally was the question, "Have you consulted a doctor for any cause not included in the above answers?" to which, as appears from the application, the insured was required to answer "Yes" or "No"; and, if "Yes, " to give the name of ailment, disease, or injury, the number of attacks, the date, the duration, the severity, the results, and, if within five years, the name and address of every physician consulted. The insured answered the question, "Yes, 1 [attack], 1918, two weeks, mild, [result] good."
The application stipulated that every statement and representation made was material and true, and that the same was made to obtain insurance, and it was declared in the policy that the policy and the application constituted the entire contract between theparties, and that "all statements made by the insured in the application in the absence of fraud shall be deemed representations and not warranties." The true meaning of the answer to the question last quoted was that the applicant had not consulted any physician in the last five years, except in 1918, and then for influenza only. It was the equivalent of saying: "No, except for influenza in 1918." This was the construction placed upon the answer by the trial court, and we think it the proper one.
The insured died within two weeks from the date of the application, and within one week from the issuance and delivery of the policy. It appears, without dispute, from the evidence that the insured had consulted several physicians for physical complaints during the five years preceding his application, and that he was treated by at least one of them, Dr. Anderson, of Milledgeville, for syphilis not long prior to his application, certainly within the last year. The fact of such treatment by Dr. Anderson was shown, not only by the testimony of this physician, who described the Insured's condition, and the character and method of the treatment administered, but also by the evidence of Mr. C. A. Giles, an attorney at law, who testified that he occupied an office adjacent to the office of the doctor, and that on one or more occasions the treatment had been administered in the witness's presence. Mr. Giles further testified that on one of the insured's visits to the office of the doctor he came into...
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...point for determination by the jury.' New York Life Ins. Co. v. Hollis, 177 Ga. 805, 807, 171 S.E. 288; Jefferson Standard Life Ins. Co. v. Henderson, 37 Ga.App. 704, 141 S.E. 498. Where, in an application for re-instatement an applicant asserted that he had not been attended by physicians ......
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