Rhodes v. Mut. Benefit Health & Accident Ass'n, 27979.

• Decision Date: 15 March 1940
• Docket Number: No. 27979.,27979.
• Court: Georgia Court of Appeals
• Parties: RHODES . v. MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N.

8 S.E.2d 685

RHODES .

v.MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N.

No. 27979.

Court of Appeals of Georgia,

Division No. 2.

March 15, 1940.

Rehearing Granted March 25, 1940. Adhered to March 30, 1940.

Syllabus by the Court.

The court did not err in directing the verdict for the defendant.

STEPHENS, P. J., dissenting.

Error from Superior Court, Hart County; Clark Edwards, Jr., Judge.

Action by Walter Rhodes against the Mutual Benefit Health & Accident Association on a policy of insurance providing for disability benefits. To review an adverse judgment, plaintiff brings error.

Affirmed.

Walter Rhodes sued the Mutual Benefit Health and Accident Association on a policy of insurance providing for disability benefits of $60 per month for total and permanent disability. The defendant contended that the policy was void because procured by fraud in that false answers were made in the application, material to the risk, with knowledge on the part of the plaintiff that they were untrue when made. The trial judge directed a verdict for the defendant and the plaintiff excepted to the ruling by direct bill of exceptions.

Johh B. Morris, of Hartwell, for plaintiff in error.

J. H. & Emmett Skelton, Carey Skelton, and A. S. Skelton, all of Hartwell, for defendant in error.

FELTON, Judge.

1. The refusal to permit the plaintiff to testify that he was an uninsurable risk at the time of the trial was not harmful error. He subsequently testified that he was totally disabled at that time. There was no offer upon plaintiff's part to first give the facts upon which he based his conclusion and he did not qualify as an expert.

2. It was not error for the court to admit in evidence certain records filedby the plaintiff in connection with his claim for world war veteran's compensation over his objections that the records were (1) privileged, (2) were not germane to the issue being tried, (3) were hearsay, (4) it had not been established that the witness identifying the records made them and kept them, and (5) that they encumbered the record. The papers constituting this record were filed by the plaintiff and he admitted the truth of everything they showed. They were relevant on the questions as to whether the plaintiff had certain diseases at the time he signed the application for the insurance policy sued on and his good faith in making the answers in the application.

3. It was not error to refuse to permit the plaintiff to testify that he did not make any statement contained in the application that was false and fraudulent. He testified that he was asked no questions and made no statements at all. The court ruled that if he testified that he made any statements it would permit him to testify that they were not false and fraudulent.

4. It was not error to permit defendant's counsel to cross-examine the plaintiff as to his testifying before a government compensation rating board to the effect that he was claiming service connection on arthritis for the reason that the evidence was pertinent on the question whether the plaintiff had arthritis at the time of his application for the insurance policy sued on in which it was stated that the plaintiff did not have arthritis at the time of the application, which was dated subsequently to the veteran's world war service.

5. The plaintiff was estopped to contend that the photostatic copy of the application for insurance was not in fact an exact copy of the original. The copy of the application was attached to the policy sued on and was a part thereof. The plaintiff could not rely on his policy for a recovery and at the same time seek to destroy a part of it. It was therefore not error for the court to admit in evidence the original application, the signature on which plaintiff did not deny, over the objection that the original application was not identified because the plaintiff testified that the agent of the insurance company signed the original and because the photostatic copy did not have the agent's signature thereon.

6. It was not error to refuse to rule out the following question to and answer from the witness Hawkins, sworn for the insurance company: "You may now state whether or not the action that you would have taken had you known of the condition of the applicant, Walter Rhodes, and his previous history as set forth in the answers to the preceding interrogatories was in keeping with such rules and regulations of good underwriting as practised by companies generally in this country? Answer: Yes, sir.". The question and answer are meaningless and harmless. The witness did not profess to testify that if he had known applicant's condition he would not have issued the policy.

7. An assignment of error on the direction of a verdict on the ground that it was contrary to law, contrary to the evidence, clearly and strongly against the weight of the evidence, without evidence to support it, and against the principles of justice and equity is insufficient to raise the question...