Nat'l Life & Accident Ins. Co. Of Nashville v. Martin

• Citation: 132 S.E. 120,35 Ga.App. 1
• Decision Date: 16 January 1926
• Docket Number: (No. 16509.)
• Court: United States Court of Appeals (Georgia)
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. OF NASHVILLE, TENN. v. MARTIN.

35 Ga.App. 1

132 S.E. 120

NATIONAL LIFE & ACCIDENT INS. CO. OF NASHVILLE, TENN.

v.MARTIN.

(No. 16509.)

Court of Appeals of Georgia,

Division No. 2.

Jan. 16, 1926.

Rehearing Denied Feb. 13, 1926.

(Syllabus by the Court.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Sound Health.]

Error from City Court of Richmond County; J. C. C. Black, Jr., Judge.

Action by Malvunia Martin against the National Life & Accident Insurance Company of Nashville, Tenn. Judgment for the plaintiff, and defendant brings error. Affirmed.

A. R. Williamson and Pierce Bros., all of Augusta, for plaintiff in error.

Jas. S. Bussey, Jr., of Augusta, for defendant in error.

JENKINS, P. J. [1, 2] The basis of the contract lay in the representation of the applicant and the opinion thus formed and otherwise arrived at by the insurer. The provision in the contract that no liability is assumed by the company prior to the date of the policy, or unless the assured shall be at that time in life and in sound health, would seem to be intended to cover such changes and exigencies as might arise after the application and medical examination or certificate of the agent and the time when the policy is issued. In Modern Woodmen of America v. Atkinson, 155 S. W. 1135, 153 Ky. 527, it was held that:

"A condition in a life insurance policy that it shall not be binding upon the insurer, unless on the date of its delivery the insured was in sound health, applies only to unsoundness of health arising after the application and medical examination, in which case the insurer must rely alone on the statements in the application to avoid a recovery, and is unavailable as a defense, unless it is shown that the insured's disease developed between his application and the time when the policy was delivered."

In Priest v. Kansas City Life Ins. Co., 227 P. 538, 116 Kan. 421, the Supreme Court of Kansas held as follows:

"The effect of a clause that a life insurance policy shall not take effect unless the applicant is in good health at the time of its delivery is to protect the company against a new element of risk through a change in the applicant's condition arising after the company's investigation has been made."

In the latter case a quotation from Fairfield v. Union Life Ins. Co., 196 Ill. App. 7, 15, is made as follows:

"The record herein shows that a period of time elapsed between the date of the applications and the medical examination above referred to, and the delivery of the policies. It is fair to presume that this situation arises in almost every instance where the defendant issues a policy. In that interim the insured may have become seriously ill or suffered a...