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 false representations made bythe insured, though 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 Superior Court, Whitfield County; John C. Mitchell, Judge.
Action by Bernard Gazaway against the Progressive Life Insurance Company on a life insurance policy. To review an adverse judgment, the defendant brings error.
Affirmed.
SUTTON, Judge.
Bernard Gazaway, as beneficiary, brought suit against Progressive Life Insurance Company on a policy of insurance issued on September 16, 1940, to his wife, Cora Gazaway, in the principal sum of $279. The company defended on the ground that the insured made false and fraudulent representations and concealments, in that in the application, which was not attached to and made a part of the policy, to the question "Are you now in good health?" she answered "Yes, " to the question "Have you lost a limb or an eye or have you any physical infirmity?" she answered "No, " and to the question "What illness have you had in the last five years?" she answered "Date, 1935, disease, asthma. O. K. now, " whereas at the time she applied for the insurance and the policy was issued, and for a number of years previously, the insured was suffering with rheumatic heart disease which was known to her and which brought about her death on March 1, 1941.
The company admitted that all due premiums had been paid and that proof of death had been filed and that it had refused to make payment under the policy. The jury returned a verdict in favor of the plaintiff, and the exception here is to the judgment overruling the defendant's motion for new trial based on the usual general grounds only. The application not
having been attached to the policy, the representations or concealments, although false and material to the risk, would not defeat recovery unless the conduct of the insured was fraudulent. Consequently, the only inquiry 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.
Dr. D. L. Wood testified: "As to what her condition [the insured's] was in 1932 when I first saw her--well, * * * she did have a rheumatic heart disease. * * * In the course of two, three, or four years I probably saw her between ten and twenty-five times. * * * I told her that she had a heart that would not let her do hard work, that she had to live a very quiet life, and that she had a type of heart trouble that she would never get over, but could live with it for a good long time, provided she took care of herself. Yes, on one occasion I was called to her home to see her while she was pregnant with a child. As to what her condition was at that time, well, the heart action was worse because of the strain of pregnancy. * * * On each occasion when I visited her and she was at my office I examined her heart. As to whether or not that condition remained the same during the time that I saw her, well, the basic condition was the same. She would get better and get worse. Under treatment she would get better, get where she could go on with her ordinary activities. That rheumatic disease never grows better. Yes, it is a serious heart disease. As to whether that is such a disease as would affect a person's sound health--yes, it would if it is severe enough. There is different degrees of severity. There is a kind of moderate severity, that overexercise or overexhaust themselves, I should say. As to whether or not I would say this was a severe case--well, this was a moderate severe case, I thought. Yes, a few weeks prior to her death in 1941 I was called to treat her again. At that time she had influenza and a beginning of pneumonia. Yes, I treated her for influenza and pneumonia. I also examined her heart on that occasion, and she still had that rheumatic heart disease. As to whether or not it was worse when I saw her in 1932--well, at the time I saw her in January, 1941, she was beginning to have heart failure from the toxic effects of the flu and beginning of pneumonia. She was given digitalis in full doses and re-covered from the flu and pneumonia, and the heart quieted down and was much better. I made three or four trips. I have forgotten now, and the last trip she was much improved, the heart had quieted down and was getting back right. * * * I didn't attend her in the last days. * * * If this lady had rheumatic heart disease when I first saw her in 1932, and during the next three or four years in which I saw her, and she had the disease when I was called to treat her in 1941, I would say that she was affected with that disease on September 4, 1940. As to whether or not laymen, and particularly working men don't usually recognize the specific disease that they have--well, many times they don't. Assuming that I treated Cora about eight years before 1940, which would have been about 1932, and that thereafter she apparently became well, that is, it appeared to her that she was, that she continued to work in the cotton mill as a textile worker for a number of years, as to whether or not I would say she would necessarily know that she had a specific disease--well, in this particular instance, with no reflection on Cora, Cora was a happy-go-lucky sort that didn't in fact, I don't think, ever realize the full seriousness of her condition, while I tried to explain it to her, but whether it made enough impression on her for her to remember I don't know, and I sometimes wonder if she did fully understand. * * * If she was up and going around, as to whether or not she would be able to carry on her normal activities without having shortness of breath or any other symptom that this type of heart disease would bring on-- well, that type of heart disease often causes a shortness of breath. The word that laymen use for anything that causes shortness of breath--well, they usually say shortness of breath. They don't usually say asthma or shortness of breath. Now, there is in some cases some types of heart failure where the heart is permitted to fail rather suddenly, and that backs up the blood in the...
