National Life & Acc. Ins. Co. v. Falks

• Decision Date: 24 February 1938
• Docket Number: 26688.
• Citation: 195 S.E. 463,57 Ga.App. 384
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. FALKS.
• Court: Georgia Court of Appeals

195 S.E. 463

57 Ga.App. 384

NATIONAL LIFE & ACCIDENT INS. CO. v. FALKS.

No. 26688.

Court of Appeals of Georgia, Second Division

February 24, 1938

Syllabus by the Court.

The application not having been attached to or made a part of the contract of insurance, the policy is not avoidable because of the falsity of representations made by the insured as to her state of health and whether or not she had had any previous illness, even though such statements are as to facts material to the risk, unless the act of the applicant for insurance was fraudulent. In the present case the jury was authorized to find from the evidence that the insured did not knowingly and fraudulently make false answers and concealments in her application for the policy of insurance.

Error from Municipal Court of Atlanta, Appellate Division.

Action by Mrs. Alice Falks against the National Life & Accident Insurance Company to recover on a life policy. To review a judgment for plaintiff, defendant brings error.

Affirmed.

Hendrix & Buchanan, of Atlanta, for plaintiff in error.

Haas Gambrell & Gardner and Irving S. Nathan, all of Atlanta, for defendant in error.

SUTTON Judge.

Mrs Alice Falks, as beneficiary, brought suit against National Life & Accident Insurance Company on a contract of life insurance issued on July 7, 1936, to her mother, Mrs. Annie L. Combs, in the principal sum of $250. The company defended on the ground that the insured made false and fraudulent representations as to being in good health, and fraudulently concealed material facts as to illness. It was set up that in answer to the question, "Are you in good health?" the insured answered "Yes," and that in response to the question, "What illness, injury or accident have you ever had?" the applicant answered, "Pneumonia twenty-five years ago, fully recovered," whereas for six months before the making of the application for insurance she had suffered from pellagra, which had manifested itself for practically two years, the disease being manifested by a type of dysentery, and that she had also suffered from a serious swelling of her hands, the skin being ruptured and a watery substance issuing therefrom, for many months prior to the date of the written application. The answer also set up that the insured had consulted in June, 1936, a Dr. Hackney, a physician for the city of Atlanta, in an effort to have her trouble diagnosed; that he had prescribed for her; and that such facts had been concealed from the defendant. The jury returned a verdict in favor of the plaintiff. The defendant filed a motion for new trial on the general grounds, and the exception here is to the judgment overruling the motion.

The application for insurance was not attached to the policy or made a part of the contract, and, consequently representations or concealments, although false and material to the risk, would not defeat recovery unless the conduct of the insured was fraudulent. The only pertinent inquiry now before this court is whether or not, under any part of the evidence, the jury was authorized to find that the insured acted in good faith and not fraudulently. It appears from the evidence that the insured, a woman of 58 years of age at the time she made the application, had, according to the testimony of a physician, been afflicted with pellagra for more than a year. This condition, however, was not known to her or any one else, and this physician who attended her in the illness which resulted in her death on January 7, 1937, stated that in his opinion such a disease might not be detected by a layman. That the insured fraudulently misrepresented her condition in that respect must, therefore, be eliminated from the consideration of whether or not she knew she was in good health. But it is contended by the defendant that for more than a year she had also suffered from a looseness of bowels, with occasional discharge of mucous or blood, and that her hands were swollen and the skin cracked, with a watery fluid issuing therefrom, and that by the concealment of such facts a finding is demanded, as a matter of law, that her act was fraudulent. It is undisputed that for more than eight years, with the exception of a visit to Dr. Hackney, a city physician of Atlanta, the insured had not been attended by any physician. During the time she was afflicted as set out above, members of her family urged her to seek medical advice, but she protested that it was unnecessary, did not wish to be embarrassed with questions, that there was nothing the matter with her but "the itch," although there was testimony that at times the condition of her hands was such as to prevent her from doing ordinary household duties, and that she was often sleepless, and interfered with the sleep of others in the same house with her. It is not shown that her visit to Dr. Hackney was for any purpose except to have her hands treated. He prescribed salve, which she used, and at the time of the application healing had taken place. Theretofore, the condition or manifestation had been intermittent.

As to the looseness of bowels with occasional discharge of mucous or blood, it was shown that such condition was also intermittent; its recurrence being brought about from time to time by consumption of rough foods. By proper dieting she was able to bring about temporary relief. As to her ability to perform household duties, there was testimony that at times she was incapacitated; but there was also testimony that generally she could perform the usual household duties for one of her years, and that a few weeks before making the application, and while visiting a...