Nat'l Life & v. Preston

• Citation: 23 S.E.2d 526
• Decision Date: 03 December 1942
• Docket Number: No. 29662.,29662.
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. PRESTON.
• Court: United States Court of Appeals (Georgia)

23 S.E.2d 526

NATIONAL LIFE &

ACCIDENT INS. CO.

v.PRESTON.

No. 29662.

Court of Appeals of Georgia,

Division No. 1.

Dec. 3, 1942.

Rehearing Denied Dec. 17, 1942.

Syllabus by the Court.

In this suit upon a policy of insurance the evidence conclusively established the defense of material misrepresentation inducing the issuance of the policy. The verdict in favor of the plaintiff was therefore unauthorized, being contrary to theevidence and to law, and the court erred in not granting a new trial.

Error from City Court of Macon; Cecil A. Baldwin, Judge.

Suit by Mrs. Amie Preston against the National Life & Accident Insurance Company to recover on a policy issued by defendant to plaintiff's husband, and in which plaintiff was named as beneficiary. To review an adverse judgment, the defendant brings error.

Judgment reversed.

Martin, Martin & Snow, of Macon, for plaintiff in error.

Hall & Bloch, of Macon, for defendant in error.

BROYLES, Chief Judge.

Mrs. Amie Preston sued National Life & Accident Insurance Company on a policy of insurance issued to her husband, James E. Preston, in which she was named as beneficiary. The defendant pleaded that the policy was void because of material misrepresentations in the application. A verdict for the plaintiff was returned; a motion for a new trial was denied and the movant excepted.

The application which was signed by the insured was attached to and made a part of the policy. It contained, among others, the question: "State names and addresses of physicians you have ever consulted and give the occasion by reference to question numbers and letters above." In reply the applicant answered: "Doctor Bailey, Newnan, Georgia. Influenza. 1919, duration two weeks; recovery complete." In the application the insured made the following agreement: "That each of the statements contained herein is full, complete, true and without exception, unless such exception is noted, and made as inducements to the execution of a policy of life insurance for which this is an application." The true meaning of the answer to the question was that the applicant had never consulted any physician except Dr. Bailey, of Newnan, Georgia, on one occasion in 1919, and then for influenza only. On the trial the evidence showed the following undisputed facts: The insured signed the application on September 5, 1940, and the policv was issued five days later; Dr. C. C. Harrold treated the insured for a pre-cancerous sore or irritation on his lip, called "keratosis, " during 1937, on the following dates: April 8 and 29, June 11, and August 8 and 10. Dr. Harrold applied radium to the keratosis on three of those occasions. Dr. Harrold next saw the insured in October, 1940, and the insured then had a cancer on the floor of his mouth, under his tongue. The insured died on March S, 1941. Thus, it clearly appears from the above undisputed evidence that the insured misrepresented in his application that he had never consulted any physician, except Dr. Bailey, of Newnan, Georgia, in 1919, and then for influenza only.

In our opinion the evidence demanded a finding that the misrepresentation was material in that it was a concealment of a fact material to the risk and an inducement to the defendant to issue the policy. This is true although the evidence did not demand a finding that the keratosis was cancerous, or that it had any connection with the cancer that caused the death of the insured. In New York Life Ins. Co. v. Hollis, 177 Ga. 805, on page 807, 171 S.E. 288, on page 290, the court said: "It would seem that in some cases a mere headache would be a negligible matter; but the insured in this case had been treated for other sickness than that of a mere headache. If she had had merely headaches and had been treated for those headaches by a physician, the insurance company should have been informed of the fact by a truthful answer to the question contained in her application. A misrepresentation as to whether the insured had been attended by a physician, whether for a headache or other ailment, was material, because the company would, upon being informed that she had been treated many times for headache, have had the right to investigate and to ascertain for itself how serious was the ailment for which she had been treated." In that case the judgment against the insurance company was reversed.

The headnote in the instant case is quoted from the headnote in Jefferson Standard Life Ins. Co. v. Henderson, 37 Ga.App. 704, 141 S.E. 498, 499. The facts of that case are almost identical with those of this case, and there the judgment in favor of the plaintiff was reversed on the ground that the evidence conclusively showed "that the insured [in his application] misrepresented that he had not re-ceived medical attention within the past five years, and that he had not within the period consulted a doctor for any cause except for influenza in 1918." And on page 706 of 37 Ga.App, on page 499 of 141 S.E, of that case the court said: "It was not necessary that the defendant should show actual moral fraud on the part of the insured. Any material misrepresentation whereby the nature, extent, or character of the risk was changed avoided the policy, whether made in good faith or fraudulently. Whether misrepresentations...