Torrence v. Am. Home Mut. Life Ins. Co
| Decision Date | 24 February 1949 |
| Docket Number | NO. 32370.,32370. |
| Citation | 52 S.E.2d 25 |
| Parties | TORRENCE . v. AMERICAN HOME MUT. LIFE INS. CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where an insured dies within the two year period of contestability provided by an incontestable clause in the policy, a mere tender within the two year period of the premiums paid by the insured, on the ground that the insurer is not liable for more than this amount, because of another provision in the policy, will not suffice to serve as a contest of liability. In order to do this, some affirmative or defensive action in court is required.
Error from Civil Court of Fulton County; Clarence Bell, Judge.
Action by Rosa Torrence against the American Home Mutual Life Insurance Company on a life insurance policy. Judgment for plaintiff in the amount of premiums paid by insured, and plaintiff brings error.
Reversed.
The plaintiff in error, Rosa Torrence, herein referred to as the plaintiff, brought suit on certain insurance policies in the Civil Court of Fulton County, against the defendant in error, The American Home Mutual Life Insurance Company, herein referred to as the defendant.
The suit originally was based on two policies. By amendment plaintiff also prayed for damages and attorney's fees. However, in their brief counsel for the plaintiff abandoned the claim for damages and attorney's fees as well as their client's claim for recovery on one of the insurance policies. Exceptions pendente lite were preserved to the overruling of demurrers of the plaintiff to the answer of the defendant and assigned as error here. However, no reference is made to this assignment of error in brief of counsel for the plaintiff. The same is therefore treated as abandoned. See York v. State, 172 Ga. 483(4), 158 S.E. 53. Also the brief of counsel for the plaintiff contains a paragraph as follows: "The sole question is whether in view of the incontestable clause of the policy quoted above, (policy No. 370104) the defendant in error can avoid liability by reason of the fraudulent representations made by the insured prior to the issuance of the policy." We therefore deal with the case on this sole question.
The defendant issued policy No. 370104 on December 1, 1944, in the amount of $500, to Scott Bradley, in which the plaintiff is named as beneficiary and which contained in substance provisions that after the policy has been continuously in force for a period of not less than 2 years, any natural death benefit payable under it shall he incontestable except for the nonpayment of premiums.
Also that if within 2 years prior to the date of the issuance of the policy, the insured thereunder has been a patient at, or an inmate at any institution for the treatment of any physical or mental disease, or has undergone any surgical operation, or has been attended by a physician, unless it shall be shown by such insured or claimant that such institutional, surgical or medical treatment or attention was not for a serious disease, injury, or physical or mental condition, then, and in such case, this policy shall be voidable by the company.
The brief of evidence as stipulated and agreed to by counsel sets forth that the insured, in obtaining the policy of insurance, signed a written application, in which he gave false and fraudulent answers to questions concerning his physical condition; that during the period of two years prior to the issuance of the policy the insured had been suffering: from a serious disease; thaton occasions during the years 1943 and 1944 the insured had been treated by several physicians and had been a hospital patient; that the fraudulent representations made by the insured were made for the purpose and with the intent of deceiving the defendant in inducing it to issue the insurance policy.
The insured died on October 26, 1946. On November 5, 1946, the defendant tendered to the beneficiary the premiums that had been paid on the policy which were refused. The policy contained a provision as follows: "If this policy does not take effect, or is voided by the company, the refund by the company, without interest, of all premiums paid shall constitute settlement in full and relieve the company from further liability hereunder." This suit was filed more than two years after the issuance of the policy.
The case was tried before a Judge of the Civil Court of Fulton County without the intervention of a jury who rendered a judgment in favor of the plaintiff in the amount of the premiums paid by the insured only. Thereupon the plaintiff filed a motion for a new trial on the general grounds and exception here is to the judgment of the trial court overruling the same.
A. T. Walden and Edward S. D'Antignac, both of Atlanta, for plaintiff in error.
W. Colquitt Carter and Bryan, Carter & Ansley, all of Atlanta, for defendant in error.
TOWNSEND, Judge (after stating the foregoing facts).
Originally this suit was based on two insurance policies issued by the defendant to the same insured and providing for the same beneficiary. One of said policies, No. 367211-M in the amount of $431, contained the provision that it shall be incontestable after it shall have been in force during the lifetime of the insured for two years from the date of the issue. The other policy, No. 370104 in the amount of $500, contained the provision hereinbefore referred to that after the policy has been continuously in force for a period of not less than two years, any natural death benefit payable under it shall be incontestable except for the nonpayment of premiums.
Counsel for the plaintiff point out in their brief that they have abandoned their client's claim on policy No. 367211-M because of that part of the incontestable provision set forth in italics herein, in view of the adverse holding of the Supreme...
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