Life Ins. Co. of Ga. v. Blanton, 40275

• Decision Date: 24 January 1964
• Docket Number: Nos. 1,No. 40275,2,3,40275,s. 1
• Citation: 135 S.E.2d 437,109 Ga.App. 116
• Parties: LIFE INSURANCE COMPANY OF GEORGIA v. Erie BLANTON
• Court: Georgia Court of Appeals

Page 437

135 S.E.2d 437

109 Ga.App. 116

LIFE INSURANCE COMPANY OF GEORGIA v. Erie BLANTON.

No. 40275.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Jan. 24, 1964.

Rehearing Denied Feb. 13, 1964.

Syllabus by the Court

1. Under the provisions of the act of 1957 (Ga.L.1957, pp. 224, 234; Code Ann. § 6-919), judgments rendered in multiple actions which involve the same parties and the same issues and which are consolidated for purposes of trial in the court below may be reviewed by a single bill of exceptions.

2. A finding was not demanded that the policies of insurance sued upon were procured by wilful and fraudulent misrepresentations of the insured in the application for the same, as contended by the defendant insurer in its answers to the plaintiff's petitions, and the general grounds of the amended motion for new trial are without merit.

3. The sole special ground of the amended motion for new trial is too incomplete to present any question for consideration.

Erie Blanton, as the named beneficiary in two policies of life insurance issued by the defendant insurance company on the life of James E. Prather, deceased, brought separate suits in the Superior Court of Wayne County to recover the face amount of said policies, including double indemnity arising from accidental death as provided for in one of the policies sued upon, plus attorneys' fees and the statutory penalty for bad faith.

The defendant insurance company filed an answer to each petition in which it asserted by way of defense that the policies sued upon had been issued to the deceased insured upon written application made by him on October 11, 1960, which application contained the following questions and answers with reference to his health history:

'22. Has person proposed any symptoms of sickness or physical or mental impairment? No.

'23. Has person proposed had medical, hospital or surgical treatment in last 5 years? No.

'24. Has person proposed been advised to have operation or treatment that is not completed? No.

'25. Has person proposed ever had insanity? No.'

It was alleged that the answers to said questions were false and fraudulent and material to the risk; that James E. Prather knew at the time said answers were made that same were false and fraudulent, but made them for the purpose of inducing the defendant to issue said policies; that the insured at the time of signing the application for said policies of insurance was and had been for several years suffering with a serious mental disorder for which he had received treatment in federal hospitals and in Milledgeville State Hospital; that said condition was material to the risk assumed by the company; and that the insurance company would not have issued the policies if the questions in said application had been truthfully answered.

The suits were tried together and the jury returned separate verdicts finding for the plaintiff on each policy, there being no award of damages for bad faith; and separate judgments were entered. The defendant filed separate motions for new trial on the usual general grounds and thereafter filed one amendment which contained a single special ground. The trial court denied the amended motion for new trial and the defendant excepted in a single bill of exceptions.

The plaintiff has filed a motion to dismiss the bill of exceptions on the ground that the defendant could not seek a review of these cases by one bill of exceptions.

Ronald F. Adams, W. A. Davis, Jr., Wm. Henderson, Brunswick, for plaintiff in error.

Albert E. Butler, Jesup, for defendant in error.

JORDAN, Judge.

1. The motion to dismiss requires consideration of an act of the General Assembly (Ga.L.1957, pp. 224, 234; Code Ann. § 6-919), which reads in part as follows: 'Whenever two or more persons are defendants or plaintiffs in an action and a judgment, verdict, or decree has been rendered against each of them, jointly or severally, said plaintiffs or defendants, as the case may be, shall be entitled to file joint bills of exceptions, motions for new trial, motions in arrest, motions to set aside, and motions for judgment notwithstanding the verdict, without regard to whether such parties have a joint interest, or whether the cases were merely consolidated for purposes of trial.'

This court has interpreted this statute in Scales v. Peevy, 103 Ga.App. 42, at page 45, 118 S.E.2d 193 at page 196, in which we said, 'It is obvious that the intent of the General Assembly in enacting this statute was to allow a joint bill of exceptions in those instances where two cases were consolidated for purposes of trial. (Emphasis supplied). This authorizes a procedure which upon numerous occasions has been refused by decisions of this court and of the Supreme Court. Its beneficent purpose must not be negated by the application of obsolescent decisions.' The Scales case has been followed and cited with approval in the cases of Columbus Plumbing & Milling Supply Co. v. Home Federal Sav. & Loan Asso., 104 Ga.App. 36, 121 S.E.2d 62; Turner v. Maryland Casualty Co., 104 Ga.App. 693, 122 S.E.2d 479; and Sun Insurance Office, Ltd. v. Guest Camera Store, Inc., 108 Ga.App. 339, 132 S.E.2d 851.

In the case under consideration there were two separate petitions filed by the same plaintiff against the same defendant, based on insurance contracts issued on one application made by the insured. The determining issue in both cases was whether or not the insured knowingly answered falsely certain questions in the application which were material to the risk. The cases were consolidated for trial before a jury which, after hearing the evidence and arguments, rendered two verdicts differing only in the amount involved in each contract.

As pointed out in Scales and Turner, supra, if the cases involve the same issues and are consolidated and tried together in the court below, the use of one bill of exceptions to complain of the judgments is authorized and sufficient. While the language used in the statute might indicate the use of a single bill of exceptions only where there are multiple plaintiffs or multiple defendants or both, our interpretation of this Act in the Scales and subsequent cases has not indicated such a restricted view.

The cases under consideration, involving the same parties, the same issues, and consolidated for trial in the court below, should be reviewable here by a single bill of exceptions. The motion to dismiss is therefore overruled.

2. The application for the policies of insurance sued upon was not attached to and made a part of the contracts of insurance; and said policies could not therefore be avoided because of any false representations made by the insured, though material to the risk, unless the act of the applicant for insurance was fraudulent. Progressive Life Ins. Co. v. Gazaway, 67 Ga.App. 339, 20 S.E.2d 189. It was thus incumbent upon the defendant insurer in order to avoid the policies to prove that the same were fraudulently procured by wilful and false statements as to matters material to the risk in the application or the fraudulent concealment of such matters made by the insured for the purpose of obtaining the insurance, as alleged by way of defense in the insurer's answers to the plaintiff's petitions. Johnson v. American Nat. Life Ins. Co., 134 Ga. 800, 68 S.E. 731; National Life & Accident Ins. Co. v. Dorsey, 69 Ga.App. 734, 26 S.E.2d 654.

While it is strongly contended by counsel for the defendant insurance company that the evidence adduced on the trial of this case demanded a finding that...