Nat'l Life & Accident Ins. Co v. Fischel, 28357.

• Citation: 9 S.E.2d 192
• Decision Date: 31 May 1940
• Docket Number: No. 28357.,28357.
• Court: Georgia Court of Appeals
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. FISCHEL.

9 S.E.2d 192

NATIONAL LIFE & ACCIDENT INS. CO.

v.FISCHEL.

No. 28357.

Court of Appeals of Georgia,

Division No. 2.

May 31, 1940.

Syllabus by the Court.

In the absence of facts constituting waiver or estoppel an insurance policy is voided by a wilfull misrepresentation of a material fact in an application for insurance made with a view to obtaining a policy of insurance, which is acted upon by an insurance company in issuing a policy, even though the applicant for the insurance did not make the misrepresentation for the purpose of prejudicing the rights of the insurance company. The charge making an intention to defraud prerequisite to the voiding of the policy was error and the court for that reason alone erred in overruling the motion for new trial. There is no merit in any of the other assignments of error.

Error from Civil Court, Fulton County; Ralph McClelland, Judge.

Suit by L. G. Fischel against the National Life & Accident Insurance Company, to recover on a life policy. To review a judgment for plaintiff, defendant brings error.

Reversed.

Wm. F. Buchanan and Ben Anderson, Jr., both of Atlanta, for plaintiff in error.

G. Seals Aiken, of Atlanta, for defendant in error.

FELTON, Judge.

This was a suit on an insurance policy issued upon the life of Mrs. Mattie J. Fischel, instituted by Lucile G. Fischel, beneficiary, against the National Life and Accident Insurance Co. The company's de-fense was that the insured in her application wilfully concealed the fact that she was pregnant at the time of the application by answering in the negative the question therein as to whether she was pregnant. The jury found for the plaintiff the face amount of the policy and the insurance company excepts to the overruling of its amended motion for new trial.

1. It was not error for the court to charge the jury that if the agent of the company had actual knowledge that the insured was pregnant at the time of the application the plaintiff could recover despite the fact that she misrepresented the fact of pregnancy. The reason urged by the company as to why this was error is that the evidence showed only constructive notice. The evidence, if credible, authorized the finding that the insured's condition and appearance showed that she was pregnant. When direct evidence is not attainable actual knowledge can be proved by circumstances which will admit of no other reasonable conclusion than that the party who asserts his ignorance of a fact actually knew it. Wiley v. Rome Insurance Co., 12 Ga. App. 186, 76 S.E. 1067. We do not agree with the contention that the agent could not possibly have had actual knowledge from observation, of the pregnancy because he had never seen the insured previously.

2. There is no merit in the contention that submitting the issue stated in the preceding division of this opinion was error for the reason that the policy provided that the policy contained the entire agreement and nobody but the president and secretary of the company could alter the...