Stillson v. Prudential Ins. Co. of America

• Decision Date: 06 February 1947
• Docket Number: 15723.
• Parties: STILLSON v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: Georgia Supreme Court

42 S.E.2d 121

202 Ga. 79

STILLSON v. PRUDENTIAL INS. CO. OF AMERICA.

No. 15723.

Supreme Court of Georgia

February 6, 1947

Rehearing Denied March 20, 1947.

Syllabus by the Court.

The court erred in directing a verdict for the defendant.

This case is before this court by reason of a divided opinion by the Court of Appeals, BROYLES, C. J., MacINTYRE and FELTON JJ., being of the opinion that the judgment of the trial court should be affirmed; and SUTTON, P. J., GARDNER and PARKER, JJ., being of the opinion that the judgment should be reversed. The case, therefore, was transferred to this court in compliance with article 6, section 2, paragraph 8 of the Constitution of 1945.

This is a suit by Mrs. Mildred V. Stillson against Prudential Insurance Company of America on a life-insurance policy for $1600. The company defended on the ground that the insured who was the husband of the plaintiff, fraudulently made untrue and incomplete answers to certain questions material to the risk, in the written application for the insurance signed by him and attached to and made a part of the policy. The company alleged that the policy was void by reason of the false, incomplete, and fraudulent representations and statements made by the insured in the application, and that for these reasons, it was not liable to the plaintiff for any sum other than the return of the premium of $45.40, which amount had been and was tendered to the plaintiff. Upon the conclusion of the evidence, the court directed a verdict in favor of the defendant, except as to the premiums of $45.40 awarded to the plaintiff, and error is assigned on that judgment.

Houston White and Sam F. Lowe, Jr., both of Atlanta, for plaintiff in error.

W. K. Meadow and Spalding, Sibley & Trountman, all of Atlanta, for defendant in error.

WYATT Justice.

The application for insurance in this case was attached to and made a part of the policy of insurance, and contained the following language: 'I agree that no agent has the authority to waive the answer to any question herein, to modify this application, or to bind the company by making any promise or representation or by giving or receiving any information.' Answers to questions contained in the application did not reveal that the applicant had ever suffered from abnormal blood pressure. The application was signe by the insured.

The evidence disclosed that in the fall of 1943 the insured was informed, when he went to the Red Cross blood bank to make a donation, that he had high blood pressure, and that he should consult a physician; that he did consult Dr. Mims, Dr. Cliff Sauls, and Dr. F. L. Neely, and was advised that he had high blood presure and an enlarged heart; that he was continuously treated by the doctors for this condition until he was admitted to Piedmont Hospital, where he died on February 20, 1946. The medical testimony was to the effect that during all of this time the condition of the insured was material to a life-insurance risk. The conflict in the testimony relates only to the circumstances surrounding the taking of the application for insurance. Mr. Blair, the agent who secured the application, testified that he was authorized to solicit business, collect premiums, deliver policies, and to get information and report it to the company. He testified, that, as the questions set out in the application for insurance were propounded to the insured, he, the agent, wrote the answers exactly as given by the insured, and then handed the application to the insured for his signature, and the insured signed the application. The beneficiary named in the policy and another person called as a witness testified that they were present when the application was written; that, as the questions were propounded to the insured by the agent, the insured gave to the agent complete information about his high blood pressure and enlarged heart, and gave him the names of the doctors who had been, and were then, treating him; that the agent then read back to the insured the answers as he pretended they were answered in the application; that the answers to the questions as read by the agent contained complete information about the physical condition of the insured and the doctors who had been, and were then, treating him; that after thus reading the answers the agent presented the application to the insured with all portions of the application covered with his hands, except the place for the signature, and the insured signed the application. It was further shown that the policy was delivered by the agent to the wife of the insured; that she put the policy away with other policies of the family, and that the insured never saw the policy.

A verdict having been directed for the insurance company on the conflicting evidence, the legal question here presented is: Where a soliciting agent of an insurance company undertook to prepare for another an application for insurance and wilfully and fraudulently, without the knowledge of the applicant, inserted in the application false answers to material questions, which were contrary to truthful answers given by the applicant, and the agent, after inserting such false answers, wilfully read the application to the applicant in such a manner as to indicate that the answers were written as...