Liberty Nat. Life Ins. Co v. Stinson

• Decision Date: 28 November 1939
• Docket Number: No. 27531.,27531.
• Citation: 6 S.E.2d 199
• Parties: LIBERTY NAT. LIFE INS. CO. v. STINSON.
• Court: Georgia Court of Appeals

6 S.E.2d 199

LIBERTY NAT. LIFE INS. CO.

v.STINSON.

No. 27531.

Court of Appeals of Georgia, Division No. 1.

Nov. 28, 1939.

Rehearing Denied Dec. 14, 1939.

Syllabus by the Court.

1. The evidence authorized the verdict.

2. " 'In a suit on a policy of life insurance procured by the insured for the benefit of another, it is not necessary that the declaration should aver that the beneficiary had any interest in the life of the insured, but a different rule prevails where one procures an Insurance on the life of another. In such a case, the plaintiff must aver, in his declaration, that he had an insurable interest in the life of the insured.' "

3. Even if the petition alleged that the beneficiary procured the insurance upon thelife of the insured without alleging an insurable interest and no demurrer was interposed to a defect which could have been amended in response thereto and upon the trial evidence unobjected to showed that the insured procured. the insurance upon her own life and named another as beneficiary, no reversible error is shown on the ground that the probata does not agree with the allegata, because the plaintiff could have amended the petition to conform with the evidence, and the defendant, by failing to object to the evidence, waived his objection to the pleading. One of the principal functions of amendments is to conserve such rights.

4. The judge, having once presented to the jury fully, fairly and clearly a principal of law pertinent to the case, is not required thereafter to repeat and reiterate every specific fact upon which the defendant bases its defense and charge that this general doctrine or principle of law pertinent to the case applies to these specific facts.

Error from Superior Court, Whitfield County; J. H. Hawkins, Judge.

Action by J. B. Stinson against the Liberty National Life Insurance Company on a policy of life insurance. Judgment for plaintiff, and defendant brings error.

Affirmed.

R. Carter Pittman, of Dalton, for plaintiff in error.

D. W. Mitchell, of Dalton, for defendant in error.

MacINTYRE, Judge.

James B. Stinson brought suit against Liberty National Life Insurance Company in the Superior Court of Whitfield County upon a policy of life insurance upon the life of Ethel Mulkey, insured, in which Stinson was named as beneficiary. He alleged that the premiums were paid and that the policy was in full force and effect on the date of the death of the insured, Ethel Mulkey. The insurance company denied liability to Stinson under the policy and pleaded specially that at the time of the application for insurance and at the time of the delivery of the policy Mrs. Ethel Mulkey was suffering from what is commonly known as "milk leg, " consisting of a large ulcer extending from her knee to her ankle, which was accompanied by swelling and an offensive odor. It was also alleged that the death of Ethel Mulkey was caused by a blood clot originating from the sore and going into the blood stream, blocking the passage of blood to her heart and causing a cerebral hemorrhage, paralysis, and death. It was also alleged that at the time the application was made and at the time of the delivery of the policy Ethel Mulkey was suffering from epilepsy and had been under the treatment of physicians therefor; that Mrs. Mulkey was not in sound health as required by the policy; that the policy never took effect by reason thereof, and that a fraud was perpetrated upon the insurance company by misrepresentations material to the risk. A verdict was rendered in favor of the plaintiff. The defendant's motion for new trial as amended was overruled and he excepted.

1. The evidence unquestionably was in conflict as to whether or not the agent of the insurance company and the company knew of the woman's having "milk leg" at the time of the application for the insurance policy and at the time of the delivery of the policy. As to the question of epilepsy, the mother of the insured testified that the insured had lived with her for the last twelve or thirteen years of her life, during which time "she was able to do work. She tufted, washed dishes, carried water, and other house work. She never had a doctor until her last sickness. I lived in the house with her, " and that "I never heard of her having epileptic fits." "Q. What seemed to be her condition over that period of time?" A. "I don't know of anything. She was apparently in pretty good health." While on cross-examination the mother testified that the daughter had fainting spells, she never would say that the daughter had epilepsy or that the fainting spells were serious in effect. On redirect examination, the mother testified that it had been six or seven years prior to her death since her daughter had had one of these fainting spells. See in this connection Wallis v. Watson, 184 Ga. 38, 40, 190 S.E. 360; Evans v. J. S. Schofield's Sons Co., 120 Ga. 961, 48 S.E. 358. Dr. Shellhorse, the attending physician and the only physician in the case, testified that he "never treated her [the insured] when she was suffering from an epilepsy attack. As to what was the cause of her death, she was paralyzed, one side was definitely paralyzed. That type of paralysis is usually caused by a cerebral hemorrhage, a plain hemorrhage, bleeding inside the brain." We think that the testi-mony of the doctor was to the effect that either "milk leg" or epilepsy might have caused the type of paralysis from which the insured died. The doctor positively testified that she had a disease which was known as "milk leg" but he never even gave it as his opinion that the insured had had epilepsy. There was testimony of other witnesses from which the jury might have drawn the conclusion, if they had seen fit to do so, that the insured had suffered epilepsy. The jury likewise having resolved, by their verdict, this issue against the defendant, it seems to us that the jury were authorized to find that the insured did not have epilepsy but had "milk leg, " which contributed to the death of the insured, but that the company through its authorized agent had known the insured was suffering from this disease at the time the policy was issued and delivered, and therefore had waived the same. The evidence authorized the verdict.

2. "A person who has no insurable interest in the life of another person cannot procure and maintain a policy of insurance on the life of such person, naming himself as the beneficiary." Gulf Life Insurance Co. v. Davis, 52 Ga.App. 464, 465, 183 S.E. 640, 641; Guaranty Life Insurance Co. v. Graham, 58 Ga.App. 767, 768, 199 S.E. 829. "This, of course, does not contravene the rule that a person has an insurable interest in his own life, and may take out a policy of insurance on his own life and name any one he desires as his beneficiary." Gulf Life Insurance Co. v. Davis, supra. " 'In a suit on a policy of life insurance, procured by the insured for the benefit of another, it is not necessary that the declaration should aver that...