National Life & Acc. Ins. Co. v. Chapman, 39462

• Decision Date: 18 June 1962
• Docket Number: No. 2,No. 39462,39462,2
• Citation: 127 S.E.2d 157,106 Ga.App. 375
• Parties: NATIONAL LIFE & ACCIDENT INSURANCE COMPANY v. J. E. CHAPMAN, Sr
• Court: Georgia Court of Appeals

Page 157

127 S.E.2d 157

106 Ga.App. 375

NATIONAL LIFE & ACCIDENT INSURANCE COMPANY v. J. E. CHAPMAN, Sr.

No. 39462.

Court of Appeals of Georgia, Division No. 2.

June 18, 1962.

Rehearing Denied July 10, 1962.

Second Rehearing Denied July 24, 1962.

Robert D. Tisinger, Carrollton, for plaintiff in error.

Shirley C. Boykin, William P. Johnson, Carrollton, for defendant in error. Syllabus Opinion by the Court

FRANKUM, Judge.

1. It is well settled that a provision in an insurance contract that the 'policy shall be incontestable after it has been in force during the lifetime of the insured for a period of one year from the date of issue, except for non-payment of premiums' is a valid, enforceable provision which operates to prevent an insurer, after the policy has been in force for a period of one year, from pleading facts to show the insurance contract as being invalid or void, except for the specified condition, and upon the happening of the event insured against, the insurer is liable to the insured in accordance with the terms of the contract. Riley v. Industrial Life etc., Ins. Co., 190 Ga. 891, 11 S.E.2d 20; Massachusetts Ben. Life Asso. v. Robinson, 104 Ga. 256, 30 S.E. 918, 42 L.R.A. 261; Penn Mutual Life Ins. Co. v. Childs, 65 Ga.App. 468, 16 S.E.2d 103; Guaranty Life Ins. Co. v. Johnson, 46 Ga.App. 13, 166 S.E. 422. But such provision does not mean that the insurer cannot contest whether a hazard insured against has or has not occurred, or whether a hazard is or is not within the scope of the risks covered by the policy. Washington Nat. Ins. Co. v. Burch, 5 Cir., 270 F.2d 300; Sanders v. Jefferson Standard Life Ins. Co., 5 Cir., 10 F.2d 143. And such legal principle was recognized by the Supreme Court in Riley v. Industrial Life etc., Co., 190 Ga. 891, 11 S.E.2d 20, supra. See also Hollis v. Travelers Ins. Co., 49 Ga.App. 274, 175 S.E. 33.

Accordingly, in an action by an insured against an insurer, it was error for the court to sustain a general demurrer to the answer and plea of the insurer which alleged that the insured's disability, the basis of his suit, did not come within the meaning of the risks insured against in the policy sued upon, which contains the above quoted 'incontestable clause,' and the court after having sustained the general demurrer to the insurer's answer, also erred in directing a verdict for the insured. The trial court having erred in sustaining the general demurrer to the defendant's answer, the subsequent proceedings in the case were rendered nugatory. Wilson v. Tumlin, 103 Ga.App. 654, 120 S.E.2d 196.

The policy in the instant case obligates the insurer to pay the insured certain benefits for 'losses * * * solely as a result of disease contracted after, or injuries sustained after the date of issue, and [the insured] has survived such loss for at least thirty days, and total and permanent disability, shall be deemed to exist, whereupon the company, * * * will provide the benefits,' and while the insurer's answer does not refer to a specific disease suffered by the insured which it contends pre-existed the issuance of the policy, paragraph 1 of the insured's petition alleges: 'That the defendant did issue to your petitioner a policy of insurance, dated December 20, 1954, Policy No. 5451...