Sovereign Camp W. O. W v. Reid

• Decision Date: 06 July 1936
• Docket Number: No. 25190.,25190.
• Citation: 53 Ga.App. 618,186 S.E. 759
• Parties: SOVEREIGN CAMP W. O. W. v. REID.
• Court: Georgia Court of Appeals

53 Ga.App. 618

186 S.E. 759

SOVEREIGN CAMP W. O. W.

v.REID.

No. 25190.

Court of Appeals of Georgia, Division No. 2.

July 6, 1936.

Syllabus by the Court.

1. A material misstatement, which is made by an applicant in an application for life insurance, referred to in the policy, of a voluntary fraternal benefit association, will avoid the policy, even though the application is not attached to the policy and the statement is made in good faith. Especially is good faith immaterial where, as in the instant case, the applicant expressly agreed that "any untrue statements or answers made by me in this application * * * intentional or otherwise * * *shall make my beneficiary certificate void."

2. A written misrepresentation in an application for life insurance, in reply to a question whether the applicant had been previously rejected for such insurance by any other company or association, is of such materiality to the risk as will avoid the policy.

3. The evidence as to the previous rejection of the insured by another company, and as to the untruth of the representation in his application that he had never been so rejected, irrespective of his lack of knowledge of the falsity, being undisputed, a verdict was demanded in favor of the defendant fraternal association in this suit by the beneficiary on the certificate. Therefore, it was error to deny the defendant's motion for new trial on the general grounds and on the special grounds excepting to charges that the misstatements of the insured as to his rejection must have been knowingly made.

4. These rulings being decisive, it is unnecessary to determine other exceptions.

Error from City Court of Valdosta; R. G. Dickerson, Judge.

Action by Alice Reid against the Sovereign Camp of the Woodmen of the World. To review a judgment for plaintiff, defendant brings error.

Reversed.

Franklin & Eberhardt and H. Langdale, all of Valdosta, for plaintiff in error.

H. B. Edwards and Jordan Johnson, both of Valdosta, for defendant in error.

JENKINS, Presiding Judge.

1. "Where an applicant for life insurance covenants in his application that the statements made to the medical examiner are true, and these statements are made a part of the contract of insurance and form the basis of such contract, any variation in any of them which is material, whereby the nature or extent or character of the risk is changed, will avoid the policy, whether the statement was made in good faith or willfully or fraudulently. * * * The representations, when made, if material, are warranties, under the Code; but they differ from the ordinary warranty, in that their falsity does not avoid the policy unless they are material, and the variation from the truth is such as to change the nature, extent, or character of the risk." Supreme Conclave Knights of Damon v. Wood, 120 Ga. 328 (1), 337, 47 S.E. 940; Code 1933, §§ 56-820, 56-821. As to ordinary life insurance companies, the statute provides that: "all life insurance policies issued upon the lives of persons within this State * * * which contain any reference to the application for insurance * * * shall contain, or have attached to said policy, a correct copy of said application signed by the applicant * * * and unless so attached * * * such application" shall not "be considered a part of the policy or contract between such parties." Code 1933, § 56-904. Thus, in policies and contracts of ordinary life insurance companies, "statements made in the application are not to be treated as warranties or covenants, on account of the failure or falsity of which the policy may be avoided, unless a copy of the application is attached to the policy or accompanies it, though representations contained in [an unattached] application, if fraudulently made, may give to the insurance_ company the right to avoid the policy." Mutual Benefit Health, etc, Ass'n v. Bell. 49 Ga.App. 640, 643, 644, 176 S.E. 124, 126. Where the application is not attached to an ordinary life insurance policy, the policy cannot be avoided by showing merely that a material representation was untrue; but the proof must go further and show that it was "knowingly and willfully false." Metropolitan Life Ins. Co. v. Bugg, 48 Ga. App. 363 (1), 172 S.E. 829, 830. See, generally, in this connection, National Accident, etc, Ins. Co. v. Davis, 179 Ga. 595, 176 S.E. 387; Metropolitan Life Ins. Co. v. Hale, 177 Ga. 632, 170 S.E. 875. However, where a certificate of insurance is issued by a voluntary fraternal benefit association, the provisions of Code 1933, § 56-904, that the application must be contained in or attached to the policy in order to be...