Life Ins. Co. of Virginia v. Pate

• Decision Date: 15 January 1919
• Docket Number: 9682.
• Citation: 97 S.E. 874,23 Ga.App. 232
• Parties: LIFE INS. CO. OF VIRGINIA v. PATE.
• Court: Georgia Court of Appeals

97 S.E. 874

23 Ga.App. 232

LIFE INS. CO. OF VIRGINIA v. PATE.

No. 9682.

Court of Appeals of Georgia, First Division

January 15, 1919

Syllabus by the Court.

Where an application for insurance is not attached to the policy nor referred to therein, it cannot be considered as a part of the contract, or introduced in evidence as such, or to show that certain statements there made were contracted or warranted to be true (Civil Code 1910, § 2471); but a failure to make the application a part of the policy does not prevent the insurer from pleading and proving that the insured made false and fraudulent statements as to the name and address of the doctor or doctors that attended him within a certain period, and that he thus fraudulently induced the insurer to issue the policy, and it was therefore void.

A "material representation" is one that would influence a prudent insurer in determining whether or not to accept the risk, or in fixing the amount of the premium in the event of such acceptance.

Questions as to the truth and materiality of representations are generally issues of fact, for determination by the jury; but where all the testimony relating to a question of fact excluded every reasonable inference but one, the issue becomes an issue of law, for determination by the court.

Error from City Court of Columbus; G. Y. Tigner, Judge.

Suit by Ruth Pate against the Life Insurance Company of Virginia. Verdict and judgment for plaintiff, motion for new trial denied, and defendant brings error. Reversed.

J. L Willis and A. W. Cozart, both of Columbus, for plaintiff in error.

Hatcher & Hatcher and Ed. Wohlwender, all of Columbus, for defendant in error.

WADE C.J.

Mrs Ruth Pate brought suit against the Life Insurance Company of Virginia on two insurance policies issued by that company to her husband, Carl L. Pate. The defendant filed demurrers both general and special, to the petition as amended; the trial court sustained the demurrers and dismissed the case; the judgment of dismissal was reversed by this court (Pate v. Insurance Company of Virginia, 19 Ga.App. 597, 91 S.E. 883); the case was subsequently tried upon its merits, with the result that a verdict was rendered in favor of the plaintiff; the defendant thereupon made a motion for a new trial, which was overruled, and it excepted.

It appears from the plea and answer that several defenses were relied upon. However, for the purposes of our decision, we deem it necessary only to consider the defense that the insured was guilty of fraud in the procurement of the policies, in that he "falsely represented in his applications for the insurance that he had not been attended by a physician during the past 12 months." The applications were not attached to the policies nor referred to therein, and therefore cannot be considered as a part of the contracts, or introduced in evidence as such, or to show that certain statements were contracted or warranted to be true (Civil Code, § 2471; Puryear v. Farmers' Mutual Ins. Ass'n, 137 Ga. 579, 73 S.E. 851); but a failure to make the applications a part of the policies did not prevent the defendant from pleading and proving that the insured had made false and fraudulent statements as to the name and address of the doctor that had attended him within a certain period, and had thus fraudulently induced the insurer to issue the policies, and that they were therefore void, not as a matter of contract, but because of fraudulent procurement. Johnson v. American Nat. Life Ins. Co., 134 Ga. 800, 68 S.E. 731; Southern Life Ins. Co. v. Hill, 8 Ga.App. 857, 862, 70 S.E. 186; Southern Life Ins. Co. v. Logan, 9 Ga.App. 503, 508, 71 S.E. 742. Therefore, the question in this case is, Did the insured, in order to procure insurance, willfully, fraudulently, and falsely answer that he had not been attended by a physician during the past 12 months.

The applications are dated May 13, 1915, and the undisputed evidence of Dr. W. A. Arnold is that in the year 1914 he treated the insured on the following dates: May 27th, June 2d, June 3d, and June 5th. Thus the fact is established by uncontradicted evidence that the insured had been attended by a physician within 12 months from the date of the applications. The treatment of the insured on the above-named dates was for acute pneumonia of the right lung, which lung showed, upon examination, cavities and rales,...