Preston v. Nat'l Life & Accident Ins. Co, No. 14481.

CourtSupreme Court of Georgia
Writing for the CourtBELL, Presiding Justice
PartiesPRESTON. v. NATIONAL LIFE & ACCIDENT INS. CO.
Decision Date12 June 1943
Docket NumberNo. 14481.

26 S.E.2d 439

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

No. 14481.

Supreme Court of Georgia.

June 12, 1943.


Syllabus by the Court.

1. It is declared in the Code, § 56-908, that after a policy of life insurance shall have been issued, the beneficiary will be entitled to collect the amount of such policy when it matures "unless the applicant or beneficiary shall have been guilty of actual fraud or shall have made material misrepresentations in procuring such policy, which representations change the character and nature of the risk as contemplated in the policy so issued by the company"; and that "no statements, covenants, or representations contained in applications for insurance shall ever be held or construed to be warranties, but shall be held to be rep-

[26 S.E.2d 440]

reservations only." This section is a codification from statutes enacted in 1912 and 1927, which were merely declaratory with respect to representations and warranties and as to fraud and good faith, and the section did not change the former law as related to these subjects.

2. Under the former statutes as construed by this court, there was no substantial difference between representation and a warranty, and all statements in applications for insurance policies, by whatever name designated, were to be treated as immaterial unless they changed the extent or character of the risk, and enhanced it as against the insurer. If the policy was based upon an application that was attached to and made a part of it, as provided by the act of 1906, Code § 56-904, and was procured by a false statement or representation in such application, as a result of which the risk was increased, a recovery on the policy could be defeated on such ground, and could be so defeated whether the statement made was in good faith or fraudulent-ly.

3. Accordingly, under the Code, § 56-908, supra, where, as in this case, an application for life insurance is attached to and made a part of a policy, any misrepresentation in the application which changes the nature and character of the risk as contemplated in the policy may defeat a recovery, regardless of good faith on the part of the insured.

4. The test in such case is not whether the matter represented shall have actually contributed to the contingency or event on which the policy is to become payable, but is whether it changed the nature and character of the risk and increased it as against the insurer under the particular policy, and by increase in risk is meant an increase that is at least substantial.

5. While a false statement as to consultation or treatment for a slight or trivial ailment may not without more be considered as a material misrepresentation, so as to avoid the policy, yet the illness need not be shown to have been serious, the true criterion being as in case of misrepresentations as to other matters, substantial increase in risk.

6. The evidence in this case showed without dispute that the insured made a false representation as to consultation of a physician and treatment with radium for a lesion or sore, known as a "keratosis" and regarded generally in the medical profession as pre-cancerous, in that it may or may not develop into a cancer, and demanded a finding that the matter so misrepresented substantially increased the risk as contemplated in the policy, notwithstanding some of the evidence may have tended to show that the particular condition had apparently healed at the time the representation was made and had no connection with the cause of the insured's death.

7. Under the rulings made above, the verdict for the beneficiary was contrary to the evidence and without evidence to support it, and the Court of Appeals properly reversed the judgment of the trial court, refusing the defendant's motion for a new trial.

Certiorari from Court of Appeals.

Suit by Mrs. Amie R. M. Preston against the National Life & Accident Insurance Company to recover on a life policy issued by defendant to plaintiff's husband in which plaintiff was named as beneficiary. The case was brought to the Court of Appeals by defendant on writ of error to review a judgment for plaintiff, and to review a decision of the Court of Appeals, 68 Ga. App. 614, 23 S.E.2d 526, reversing such judgment, plaintiff brings certiorari.

Judgment of the Court of Appeals affirmed.

See, also, 194 Ga. 583, 22 S.E.2d 157.

In a suit on a life insurance policy, the defendant pleaded that the policy was void because of material misrepresentations in the application. The plaintiff recovered, the defendant's motion for a new trial was overruled, and the Court of Appeals reversed the judgment, holding that the evidence demanded a finding in favor of the defendant. The plaintiff's application for certiorari was granted. For the decision under review, see National Life & Accident Insurance Co. v. Preston, 68 Ga.App. 614, 23 S.E.2d 526.

Mrs. Amie R. M. Preston, as beneficiary, sued National Life & Accident Insurance Company upon a policy of insurance issued on the life of her husband, James E. Preston. The policy was issued on September 10, 1940, upon an application that was signed by the insured on September 5, a copy of which was attached to and made a part of the contract. The insured died

[26 S.E.2d 441]

from a cancer in his mouth, on March 5, 1941.

In reply to one question, the applicant told of an operation for appendicitis in 1923. The application contained next the following question: "State names and addresses of physicians you have ever consulted and give the occasion by reference to question numbers and letters above, " such preceding numbers and letters referring to named diseases and symptoms, and also to "any ailment or disease" not specifically mentioned. The applicant answered: "Doctor Bailey, Newnan, Georgia. Influenza. 1919, duration two weeks; recovery complete." No other consultation or treatment was mentioned. The application contained also the the following stipulation: "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 insurance company pleaded in defense that as a matter of fact the insured had consulted Dr. C. C. Harrold for an ulcer on his lip, known as a keratosis, and for which he had received radium treatment from Dr. Harrold in 1937. Evidence was introduced on both sides, including the testimony of four physicians. In so far as necessary, the evidence will be stated in the opinion, to follow, and need not be set forth in this statement.

The petition for certiorari quoted several extracts from the decision of the Court of Appeals, and assigned error as follows: (a) The evidence did not exclude every reasonable inference except that the misrepresentations were material; (b) the present case is distinguished from Jefferson Standard Life Ins. Co. v. Henderson, 37 Ga.App. 704, 141 S.E. 498, the facts of which were stated by the Court of Appeals to be "almost identical with those of this case"; claimed differences being stated in the assignment of error; (c) in holding that the evidence demanded a finding that the misrepresentation was material, although the evidence did not demand a finding that the keratosis had any connection with the death of the deceased, the court put itself in the position of holding that a thing immaterial is a thing material; (d) in impliedly holding that the case is controlled by Sovereign Camp of Woodmen Of the World v. Parker, 36 Ga. App. 695, 138 S.E. 86, the court overlooked stated differences between that case and the instant case; (e) in holding that the case is controlled by New York Life Ins. Co. v. Hol-lis, 177 Ga. 805, 171 S.E. 288, the court erred because that case involved the reinstatement of a policy which is not covered by the statute here to be construed (section 56-908 of the Code); (f) in holding that the case is controlled by Northwestern Life Ins. Co. v. Montgomery, 116 Ga. 799, 43 S.E. 79, the court erred, because that case was decided by the Supreme Court in 1902, twenty-five years before the passage of the act of 1927 (Ga.L.1927, p. 223), which together with the act of 1912 (Ga. L.1912, p. 130), is now codified as section 56-908 of the Code; (g) in holding that the case is controlled by National Life & Accident Ins. Co. v. Gordon, 183 Ga. 577, 188 S.E. 894, the Court of Appeals overlooked the "utter difference" between the two cases; the difference claimed being then set out in the assignments; (h) in holding that the case is controlled by New York Life Ins. Co. v. Hollis, 177 Ga. 805, 171 S. E. 288, the court would not follow the more recent case of Vaughn v. National Life & Accident Ins. Co., 189 Ga. 121, 5 S.E.2d 5, a decision which was concurred in by all the Justices and fully explained the ruling in the Hollis case; (i) the misrepresentation was not such a one as changed the character and nature of the risk as contemplated in the policy issued by the company; (j) the court failed to note the last sentence of section 56-908 of the Code, supra, to wit: "No statements, covenants, or representations contained in applications for insurance shall ever be held or construed to be warranties, but shall be held to be representations only."

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

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

BELL, Presiding Justice (after stating the foregoing facts).

Since the parties occupy in this court the same relative positions that they did in the trial court, they may be referred to herein as plaintiff and defendant.

We shall not deal with the assignments of error seriatim, but will endeavor to state the controlling statutes and principles, and to apply them appropriately to the questions presented. In view of plaintiff's contention that the laws relating to life insurance were materially changed by statutes enacted in 1912 and 1927, it may be helpful to quote

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  • Johnson v. Avis Rent A Car System, LLC, S20G0695, S20G0696
    • United States
    • Supreme Court of Georgia
    • May 3, 2021
    ...vehicle unattended and accessible to the incompetent driver.").27 See Preston v. Nat. Life & Acc. Ins. Co. , 196 Ga. 217, 237, 26 S.E.2d 439 (1943) (Questions "as to negligence, proximate cause, and similar matters, should ordinarily be submitted to the jury; yet, ... where th......
  • Prudential Ins. Co. of America v. Perry, No. 44809
    • United States
    • United States Court of Appeals (Georgia)
    • March 19, 1970
    ...53 Ga.App. 241, 185 S.E. 373; National Life & Acc. Ins. Co. v. Preston, 68 Ga.App. 614, 23 S.E.2d 526, supra, affirmed, 196 Ga. 217, 26 S.E.2d 439; Hamby v. American Ins. Co., 73 Ga.App. 531, 533, 37 S.E.2d 217; National Life & Acc. Ins. Co. v. Hullender, 86 Ga.App. 438, 71 S.E.2d 7......
  • Johnson v. Avis Rent A Car Sys., LLC, S20G0695, S20G0696
    • United States
    • Georgia Supreme Court
    • May 3, 2021
    ...vehicle unattended and accessible to the incompetent driver.").27 See Preston v. Natl. Life & Acc. Ins. Co. , 196 Ga. 217, 237, 26 S.E.2d 439 (1943) (Questions "as to negligence, proximate cause, and similar matters, should ordinarily be submitted to the jury; yet, ... where t......
  • Williams v. Dresser Industries, Inc., No. 1:92-CV-333-RHH.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • May 4, 1992
    ...are normally for the jury." Grizzle, 602 F.Supp. at 467 (citing Preston v. Nat. Life and Accident Ins. Co., 196 Ga. 217, 237, 26 S.E.2d 439 (1943); Adkins v. Lee, 127 Ga.App. 261, 264, 193 S.E.2d 252 (1972)). Nevertheless, "where the evidence as a whole excludes every reasonable i......
  • Request a trial to view additional results
46 cases
  • Johnson v. Avis Rent A Car System, LLC, S20G0695, S20G0696
    • United States
    • Supreme Court of Georgia
    • May 3, 2021
    ...and the vehicle unattended and accessible to the incompetent driver.").27 See Preston v. Nat. Life & Acc. Ins. Co. , 196 Ga. 217, 237, 26 S.E.2d 439 (1943) (Questions "as to negligence, proximate cause, and similar matters, should ordinarily be submitted to the jury; yet, ... where the evid......
  • Prudential Ins. Co. of America v. Perry, No. 44809
    • United States
    • United States Court of Appeals (Georgia)
    • March 19, 1970
    ...53 Ga.App. 241, 185 S.E. 373; National Life & Acc. Ins. Co. v. Preston, 68 Ga.App. 614, 23 S.E.2d 526, supra, affirmed, 196 Ga. 217, 26 S.E.2d 439; Hamby v. American Ins. Co., 73 Ga.App. 531, 533, 37 S.E.2d 217; National Life & Acc. Ins. Co. v. Hullender, 86 Ga.App. 438, 71 S.E.2d 754; Gene......
  • Johnson v. Avis Rent A Car Sys., LLC, S20G0695, S20G0696
    • United States
    • Georgia Supreme Court
    • May 3, 2021
    ...and the vehicle unattended and accessible to the incompetent driver.").27 See Preston v. Natl. Life & Acc. Ins. Co. , 196 Ga. 217, 237, 26 S.E.2d 439 (1943) (Questions "as to negligence, proximate cause, and similar matters, should ordinarily be submitted to the jury; yet, ... where the evi......
  • Williams v. Dresser Industries, Inc., No. 1:92-CV-333-RHH.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • May 4, 1992
    ...are normally for the jury." Grizzle, 602 F.Supp. at 467 (citing Preston v. Nat. Life and Accident Ins. Co., 196 Ga. 217, 237, 26 S.E.2d 439 (1943); Adkins v. Lee, 127 Ga.App. 261, 264, 193 S.E.2d 252 (1972)). Nevertheless, "where the evidence as a whole excludes every reasonable inference b......
  • Request a trial to view additional results

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