Nat'l Life & Accident Ins. Co v. Gordon, 11484.
| Decision Date | 02 December 1936 |
| Docket Number | No. 11484.,11484. |
| Citation | 188 S.E. 894,183 Ga. 577 |
| Court | Georgia Supreme Court |
| Parties | NATIONAL LIFE & ACCIDENT INS. CO. v. GORDON. |
Rehearing Denied Dec. 11, 1936.
Syllabus by Editorial Staff.
Error from Superior Court, Barrow County; W. W. Stark, Judge.
Action by the National Life & Accident Insurance Company against R. G. Gordon, wherein defendant filed a cross-petition. Judgment for defendant on cross-petition, and plaintiff brings error.
Reversed.
The National Life & Accident Company filed a petition to cancel a policy of life insurance for the principal sum of $1,000, with a double indemnity provision attached thereto, issued on the life of Judson Leary Gordon. In its petition as amended the company alleged that the insured had made material false representations in his application for insurance, which application was attached to and made a part of the policy. It was further contended that Gordon was in the habit of going on drinking bouts and sprees; that had the plaintiff known of the habits of Gordon it would not have issued to him the policy of insurance; and that Gordon had concealed these facts from the plaintiff. The defendant, Mrs. Ruby Gordon, filed an answer and a cross-petition, denying that the policy should be canceled, and alleging that her husband died as a result of accidental poisoning, and that for this reason the insurance company was indebted to her in double the principal of the policy; and she contended that the defense by the insurance company was not made in good faith, and on that ground she sought to recover additionally 25 per cent. as damages, and $250 as attorneys' fees. To this cross-bill the insurance company filed a response setting up that the death of Gordon was caused, not by accident, but by excessive drinking of a low grade of whisky, voluntarily taken, causing him to become intoxicated and poisoned to such an extent as to set up alcoholic poisoning, which resulted in his death. The company further set out the questions and answers made by Gordon in his application for said policy, with reference to having been treated by a physician at any time before the application dated February 15, 1935, for the policy issued on March 7, 1935; the company alleging that the insured in his application had represented that he had not been treated by any physician for any illness before said application, except by Dr. W. T. Randolph on two occasions for biliousness, and that a copy of the written application was attached to and made a part of the policy, and this representation was material to the risk and was false, because in fact Dr. W. R. McGinty had, over a period of three weeks, treated Judson L. Gordon for an illness caused by excessive use of alcohol; and the company tendered a return of the premiums.
At the trial certain questions were submitted to the jury, to render a special verdict by their answers. The jury found that Judson L. Gordon had consulted a physician before February 15, 1935, and had consulted Dr. W. R. McGinty during August and September, 1931, and had been treated by Dr. McGinty. In response to the question 8, "For what illness or disease did Dr. W. R. McGinty treat Judson L. Gordon before February 15, 1935?" the answer of the jury was: "The evidence conflicting." The jury further answered the following questions as indicated. Q. "Was there a failure by Judson L. Gordon, the insured, to state in the application for the insurance in this case a material fact, and done fraudulently by him?" Answer: "No." Q. "Was there a willful concealment of a material fact by Judson L. Gordon in making application for the insurance in this case, as explained in the court's charge?" Answer: "No." Q. "Was the death of Judson L. Gordon caused by acute poisoning of any kind, not taken knowingly and with suicidal intent?" Answer: "No." The jury brought in a general verdict in favor of Mrs. Gordon against the insurance company, for $1,000, and in addition $250 as damages, and $250 as attorneys' fees. The plaintiffs motion for new trial was overruled, and it excepted.
In the application attached to and made a part of the policy of insurance were asked certain questions as follows: Mrs. Ruby Gordon supplied a proof of loss, in which she stated that Judson L. Gordon died of acute alcoholic poisoning, and that Dr. McGinty, of Moultrie, Ga., and Dr. Barnes, of Winder, Ga., had attended him during the last five years before his death. On the trial the agent of the insurance company testified that he never knew that Gordon had been treated by Dr. McGinty until after Gordon's death. Dr. W. L. Matthews, the physician who attended Gordon on the night of September 1, and the morning of September 2, testified that Gordon died of acute alcoholic poisoning caused by drinking an excessive amount of low-grade whisky. When he was first called, Gordon was very violent, raging, several people were having to hold him, and he was wanting to kill himself, and threatened to kill his mother, and was cursing her. He was thoroughly out of his mind, and was a maniac. His wife told the doctor he had been drinking, and showed him a fruit jar, and some stuff he had been drinking was in it. It was so-called whisky. It was very vile smelling stuff. In the doctor's opinion Gordon died of acute alcoholic poisoning. Dr. W. R. McGinty, of Moultrie, Ga., testified that he was called to treat Judson L. Gordon in May, 1931, for excessive use of whisky, and had treated him on several other occasions when he became sick from the excessive drinking of whisky. He had treated Gordon continuously from August 23, through September 15, 1931, or 1932. Gordon was in bed for at least two weeks, and his illness was caused by excessive use of alcohol. Witness had treated him for drinking at the Colquitt Hotel at Moultrie, Ga., and had treated him for drinking at the plant where he worked, having been called there one night. Plaintiff introduced the policy and the application constituting a part thereof. The evidence showed that on October 2, 1935, the company mailed to the insured a premium notice requesting payment of premium, although he died on September 2, 1935.
The defendant introduced testimony to the effect that Gordon was apparently in good...
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