Southern Sur. Co v. Fortson

• Decision Date: 11 November 1931
• Docket Number: Nos. 21204, 21223.,s. 21204, 21223.
• Citation: 44 Ga.App. 329,161 S.E. 679
• Parties: SOUTHERN SURETY CO. OF NEW YORK . v. FORTSON. FORTSON . v. SOUTHERN SURETY CO. OF NEW YORK.
• Court: Georgia Court of Appeals

44 Ga.App. 329

161 S.E. 679

SOUTHERN SURETY CO.

OF NEW YORK .

v.FORTSON.

FORTSON .

v.SOUTHERN SURETY CO.

OF NEW YORK.

Nos. 21204, 21223.

Court of Appeals of Georgia, Division No. 1.

Nov. 11, 1931.

Rehearing Denied Dec. 15, 1931.

Syllabus by the Court.

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 flies crossbill of exceptions.

Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill.

Earle Norman, of Washington, Ga., for plaintiff in error.

B. W. Fortson, of Washington, Ga., for defendant in error.

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, wore 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 falsi-ty 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.

"22. Question 10 of said application reads as follows: 'What accident or sickness insurance have you? (Give name of insurers and amounts of indemnity.)' Plaintiff answered this question 'None, ' whereas at the time this answer was made plaintiff was carrying a policy of accident insurance in the Maryland Casualty Company, which said policy of insurance provided for an indemnity of $30.00 per week in case of accident. The statement of plaintiff answering 'None' should have been answered by giving the name of the insurer and the amount of indemnity as required by question 10 of said application, and had plaintiff correctly answered said...