Nat'l Cas. Co v. Borochoff
| Decision Date | 22 September 1932 |
| Docket Number | No. 22076.,22076. |
| Citation | 165 S.E. 905,45 Ga.App. 745 |
| Parties | NATIONAL CASUALTY CO. v. BOROCHOFF. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. While a policy of accident insurance will be avoided where the applicant has made in his application false statements as to matters material to the risk, such as the physical condition of the applicant, his state of health, or the existence vel non of other insurance, where the agent who filled out the application and delivered the policy to the insured had actual knowledge of such incorrect statements in the application, the insurer will be held to have notice thereof and to be estopped from asserting the invalidity of the policy because of such incorrect statements in the application.
2. The evidence demanding a finding that the insurer had notice of the fact that the insured had other and concurrent insurance, the court did not err in failing to charge the jury that under the policy of insurance in this case the company would only be liable for its pro rata share of the insurance, the insured having failed to give to it written notice that it had other insurance as required by the policy.
3. The penalties provided for in section 2549 of the Civil Code 1910 accrue by virtue of a demand, and the demand must be made at a time when a demand for immediate payment is in order; and a verdict providing for the recovery of these penalties cannot be had where no demand was in direct terms averred in the petition and there was no evidence of any demand meeting the requirements of the above section.
Error from Superior Court, Fulton County; G. H. Howard, Judge.
Suit by Isadore Borochoff against the National Casualty Company. To review a judgment of the superior court denying the defendant's petition for certiorari to review a judgment of the appellate division of the municipal court of Atlanta, which affirmed a judgment in favor of the plaintiff, the defendant brings error.
Judgment affirmed on condition of remittitur.
In April, 1927, Borochoff brought suit against the National Casualty Company in the municipal court of Atlanta on a policy of health and accident insurance for five weeks' indemnity at $100 a week, plus 25 per cent. penalty as provided by the terms of section 2549 of the Civil Code. The trial of the case resulted in a verdict for the plaintiff, but on certiorari a new trial was granted. Plaintiff excepted to this judgment, and this court affirmed the judgment. Borochoff v. National Casualty Co., 39 Ga. App. 319, 146 S. E. 916. A second trial resulted in a verdict for the defendant, and a new trial was granted by the trial judge. On a third trial, the plaintiff obtained a verdict for the full amount sued for, plus the 25 per cent. provided for in the above-cited section of the Code. The trial court overruled a motion for new trial, and the defendant appealed to the appellate division of that court, and the judgment was affirmed. The superior court denied the defendant's petition for certiorari, and to this judgment the defendant excepted.
The application of the plaintiff for this policy of insurance contained this provision: The insured then stated in the application that he had no other accident or health insurance, that he had never received indemnity for accident or illness except a small claim for accident with the Masonic Mutual & Commercial Travelers of Boston, and that he had never been disabled or received medical or surgical attention except for an injured hand for about three weeks and for cold and biliousness about one to two weeks.
The defendant asserts that each of the above representations was material to the risk to be assumed by it in issuing the policy of insurance, and that these statements were not true, and so vary from the truth as to have increased the hazard of insurance applied for and were material to the risk, and that, had it known that these statements were not true, it would never have issued the policy. The defendant contends that, at the time of the application for this insurance and the issuance of the policy, the plaintiff had accident and health insurance in various other companies, which was unknown to it, and that prior thereto the plaintiff had sustained several other injuries for which he collected disability insurance from other accident and health companies, all unknown to it; that prior thereto the plaintiff received an injury to his left shoulder for which he collected about $300 from a named company under an accident policy, all unknown to it, the injury to his shoulder being an injury to the same shoulder on which he makes claim in the present case; that he was not in a sound and healthy condition physically; and that he had a bodily infirmity not disclosed in the application for insurance, and, had the same been known to it, the policy of insurance would not have been issued. The defendant further contends that, promptly upon its discovery of these misrepresentations of material facts in the application for the policy, it tendered to the plaintiff the full amount of the premiums paid by him and offered to restore him to his original status. The defendant further contends that the plaintiff has collected large sums of money...
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