Syllabus
by the Court.
Misrepresentation
of material fact made by insurer's agent in application
attached to policy will be imputed to insured (Civ. Code
1910, § § 2471, 2479, 2480, 2483).
False
representations in application for accident policy that
applicant carried no other accident insurance and that his
income exceeded indemnity under all policies carried
prevented recovery (Civ. Code 1910, § § 2471, 2479, 2480
2483).
1. The
court did not err in overruling all the grounds of the
demurrer to the amended petition.
2. The
court properly overruled subparagraphs 1, 2, 4, 5, and 6 of
paragraph 1 of the demurrer to the amended answer, and
properly overruled grounds 2, 3, 5, 8 and the first paragraph
of ground 9 of the demurrer.
3.
However, the court erred in sustaining subparagraph 3 of
paragraph 1 of the demurrer, and also erred in sustaining
paragraphs 4, 6, and 7, and the last three paragraphs of
ground 9 of the demurrer. And those errors rendered the
further proceedings in the case nugatory.
Error
from Superior Court, Wilkes County; C.J. Perryman, Judge.
Action
by B. W. Fortson, Jr., against the Southern Surety Company of
New York. Judgment was entered overruling in part and
sustaining in part a demurrer to the amended answer and
directing amendment, and defendant brings error, and
plaintiff files cross-bill of exceptions.
Judgment
reversed on the main bill of exceptions, and affirmed on the
cross-bill.
BROYLES
C.J.
This is
a suit upon a policy of accident insurance.
1.
Copies of the policy and of the application therefor, signed
by the plaintiff, were attached to the petition, and the
petition as amended set out a cause of action and was not
subject to any of the special grounds of the demurrer, and
the court properly so ruled.
2. The
answer to the question as to the correctness of the
court's ruling upon the demurrer to the amended answer
depends upon a consideration, and the proper construction, of
the answer and the demurrer. Of course it is elementary law
that, when pleadings are attacked by demurrer, the truth of
the allegations of fact set forth in the pleadings, and the
truth of all other allegations supported by the facts stated
in the pleadings, are admitted.
Upon
the question now under consideration, the following
paragraphs of the amended answer are pertinent and material:
"16.
For further plea and answer defendant says: That the policy
of accident insurance was issued based upon a certain
written application executed and delivered to defendant by
plaintiff, and that a copy of said application for said
insurance was attached to the policy of insurance delivered
by defendant to plaintiff, all in compliance with section
2417 [2471] of the Civil Code of Georgia of 1910, and that
under the law plaintiff cannot claim under the contract of
insurance without being held to knowledge of the statements
in the application for said insurance, which forms a part
of the contract of insurance as delivered and accepted by
plaintiff and now sued upon.
"17.
A copy of said application is hereto attached, marked
Exhibit A, and made a part of this plea and answer.
"18.
Question 9 of said application reads as follows: 'Does
your income per month exceed the gross amount of single
monthly indemnity under all policies carried and now
applied for by you?' Plaintiff answered said question
'Yes.' At the time this question was answered
plaintiff was carrying an accident insurance policy with
Maryland Casualty Company, which said policy of insurance
provided for a weekly indemnity of $30.00. This would make
a total of $120.00 per month under the policy carried with
Maryland Casualty Company and $100.00 a month with the
defendant company, which would make the gross amount of
single monthly indemnity under all policies carried by
plaintiff and now applied for by plaintiff $220.00, whereas
at the time plaintiff was receiving a monthly income of
only $150.00; which said representations were untrue, and
they changed the nature and character of the risk assumed
by the defendant; and by reason of said representations,
which defendant alleged were false, said policy of
insurance is null and void and plaintiff cannot recover
thereon.
"19.
The application for said insurance company provides, just
before the first question is asked, as follows: 'I
hereby apply to the Southern Surety Company for a policy of
insurance to be issued in pursuance of the following
representation.' Question 17 of said application reads
as follows: 'Do you understand and agree that as each
and all of the above representations are made to induce the
issuance of an insurance policy, should one or more of such
representations, whether actually written hereon by you or
not, prove to be false, all right to recovery of indemnity
by yourself, your beneficiary, heirs or assigns, under any
policy issued upon this application, shall be voided and
forfeited to the company if such false answer were made
with actual intent to deceive, or materially affect the
acceptance of the risk, or the hazard, assumed by the
company; that the signing of this application does not
effect an insurance contract, and that the insurance hereby
applied for shall not be effective prior to the date and
hour set forth in a policy actually issued by the company,
such policy thereupon becoming effective if delivered to
you while you are in good health and free from the effects
of any injury, disease, or bodily infirmity; that no agent
or solicitor of the company has authority to alter, amend
or waive any policy provision or requirement."
"20.
This was a material statement made in said application;
said statement was untrue and the fact thereof was known to
plaintiff at the time made; such statement was made with a
view of procuring the insurance; the defendant had no
knowledge of the falsity
of the statement and defendant acted thereon to its injury,
because if defendant had known that plaintiff's monthly
income did not exceed the gross amount of single monthly
indemnity under all policies carried by plaintiff at the
time, and also all policies applied for at the time,
defendant would not have issued the policy sued upon, and
the very purpose of question 9 of the application was to
obtain from plaintiff the amount of indemnity carried and
applied for at the time, and had plaintiff answered said
question correctly, no insurance would have been issued to
plaintiff by defendant, and the statement of plaintiff in
answering said question incorrectly perpetrated a fraud
upon defendant, and said policy of insurance is null and
void on account of the fraud perpetrated on defendant by
plaintiff in answering said question 'Yes,' when it
should have been answered "No."
"20-A.
Defendant does not and cannot issue a policy of accident
insurance where the income of the applicant per month [does
not] exceed the gross amount of single monthly indemnity
under all policies carried by applicant and applied for by
applicant, this defendant only issuing policies of accident
insurance where the written application shows that the
income per month exceeds the gross amount of single monthly
indemnity under all policies. The basis upon which this
defendant will issue a policy of accident insurance depends
upon a correct answer of question 9 of the application
attached to the policy sued upon in this case. And if this
application had been correctly answered, it would have
shown that at the time the application was executed
plaintiff had in force a policy with the Maryland Casualty
Company carrying an indemnity of $30.00 per week, and the
policy issued by defendant carried an indemnity of $100.00
a month, whereas at the time plaintiff was drawing a salary
of $150.00 a month and had no other income except this
salary. Defendant alleges that the basis of accident
insurance depends upon the amount of the income of the
applicant, and that defendant will in no event issue a
policy of insurance where it is known that the indemnity
thereunder amounts to more than eighty per cent of the
income of the applicant. And had plaintiff made the correct
answer to question 9, which was 'Yes,' no policy of
insurance would have been issued.
"21.
Said policy of insurance is null and void because it
materially affected the acceptance of the risk and
increased the hazard assumed by defendant by plaintiff
answering said question 9 'Yes', when it should
have been answered "No."
"21-A.
When plaintiff answered question 9 'Yes' instead of
'No', defendant relied on said answer to said
question and issued said policy, believing that
plaintiff's income per month did exceed the gross
amount of single monthly indemnity under all policies
carried and applied for by plaintiff, when as a matter of
fact plaintiff's income per month did not exceed the
gross amount of single monthly indemnity under all policies
carried and applied for by plaintiff, because at that time
plaintiff had a policy of accident insurance with Maryland
Casualty Company carrying an indemnity of $30.00 a week,
and defendant's policy carried an indemnity of $100.00
per month, making approximately $220.00 a month indemnity,
whereas plaintiff's monthly income was only $150.00 a
month. Had these facts been known and had said question 9
been correctly answered, defendant would not have accepted
the risk, and the incorrect answer to said question
increased the hazard assumed by defendant as above set
forth in detail.
"
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