Wooten v. Life Ins. Co. of Ga.

• Decision Date: 14 March 1956
• Docket Number: No. 2,No. 36097,36097,2
• Citation: 92 S.E.2d 567,93 Ga.App. 665
• Parties: Addle WOOTEN, Guardian, etc. v. LIFE INSURANCE COMPANY OF GEORGIA
• Court: Georgia Court of Appeals

Page 567

92 S.E.2d 567

93 Ga.App. 665

Addle WOOTEN, Guardian, etc. v. LIFE INSURANCE COMPANY OF GEORGIA.

No. 36097.

Court of Appeals of Georgia, Division No. 2.

March 14, 1956.

Rehearing Denied March 28, 1956.

Syllabus by the Court.

1. An objection to testimony which is otherwise admissible, on the ground that the defedant is estopped to urge fraud in the procurement of an insurance policy as a defense, is without merit, where the defendant is not relying on fraud in the procurement to vitiate the policy and the testimony is relevant as to another defense on which the defendant does rely, that the disability is not covered under the terms of the policy.

2. A sufficient foundation was laid for the introduction of secondary evidence to prove the execution of an application for insurance introduced by the defendant where the maker, the insane insured, was unable to testify and the sole witness to the instrument could not be located.

3. Unsworn statements of persons not offered as witnesses are inadmissible to prove the truth of the facts set out in such statements. Accordingly, the trial court erred in allowing the defendant to introduce a sickness and accident claim form filled out by a physician, not a witness in the case, either for the purpose of proving the truth of statements therein contained or for the purpose of contradicting another form signed by the same physician and introduced by the plaintiff, since neither document had any probative value except to show that the policy terms had been complied with.

4. It was not error to admit parol testimony as to prior epileptic seizures of the insured on which claims had been paid by another insurance company, the purpose of such testimony not being to show the payment of claims, but the existence of the seizures.

5. The defendant insurance company failed to prove by competent evidence that the disability from which the insured is presently suffering is the same as that from which he suffered in 1948 and other years prior to that of the issuance of the policy.

Addie Wooten as guardian of Ellis Wooten, an incompetent, filed an action against the Life Insurance Company of Georgia the application, made a part of the policy seeking disability payments in the sum of $300 plus interest and attorney fees. The defendant's answer as amended denied liability and pleaded fraud in the procurement of the policy based on the fact that the application, Made a part of the policy by reference, stated that the applicant was in good health and had never had fits or convulsions, whereas the applicant knew at the time of making said statements that he had been subject to epileptic fits during his entire lifetime and was not in sound health, and further that the policy is void insofar as this claim is concerned because recovery is sought for a disability in existence prior to the date of the policy and accordingly not covered thereby. Policy provisions proved on the trial of the case included the following: 'Effective date. This policy shall take effect on the date of issue provided the premium is paid and the insured is in sound health and free from bodily injuries. * * * The company will not be liable under sections 4, 5, 6 or 7 on the first page for the result of disease contracted or accident occurring before the date of issue.' Upon proof that the company had accepted premium payments subsequently to the disability on which recovery is here sought, the defendant ceased to rely as a defense upon fraud in the procurement so as to void the entire policy, but admitting it remains in force and effect, sought to prove by evidence introduced on the trial that the plaintiff had suffered from epilepsy for a number of years, had had frequent epileptic fits prior to his application for insurance, and is not covered under the policy terms for this disability. Evidence is undisputed that he is about 25 years of age and has been committed to Milledgeville State Hospital on a diagnosis of psychosis with epilepsy.

The trial resulted in a verdict in favor of the defendant. The plaintiff moved for a directed verdict before verdict and after verdict moved for judgment notwithstanding the same. He also filed a motion for a new trial on the general grounds which was amended by the addition of 4 special grounds. The overruling of these motions is assigned as error.

Lawson E. Thompson, Washington, for plaintiff in error.

Earle Norman, Washington, for defendant in error.

TOWNSEND, Judge.

1. The first special ground of the amended motion for a new trial assigns error on the admission of the testimony of a witness as to fits and convulsions suffered by the insured for a number of years prior to the issuance of the policy on the ground that the testimony is inadmissible because the defendant is estopped to urge fraud in the procurement of the policy as a defense. Since fraud in the procurement would void the entire policy, Code, § 56-824, except as to the life insurance feature which had become incontestable, and since the district manager testified: 'This policy included any disease the insured may have after the policy is issued but excludes any disease which the insured may have had prior to the date of the policy. * * * I still contend the policy is in force. We do not pay it because it does not cover that disease,' it is obvious that the defendant was not relying on fraud in the procurement as a defense. This assignment of error is accordingly without merit.

2. The second special ground objects to the admission in evidence of the insured's application for the insurance policy on which this action is based, on the ground that neither Ellis Wooten, the insured, nor T. L. Clark, the witness to the application, identified the same and that Clark's signature was not satisfactorily accounted for. It is necessary to produce the subscribing witness where the party executing the written instrument does not testify to its execution, Code, § 38-706(5), unless the witness cannot be produced and sworn, Code, § 38-706(2). In such case, proof of handwriting may be resorted to by the testimony of any witness who shall swear that he knows or would recognize the handwriting. Code, § 38-708. In this case there was testimony that Clark, a former employee of the defendant, could not be located, and a witness testified 'I am reasonably sure that this is the signature of Ellis Wooten on this paper shown me. * * * I have a mental picture of his signature but don't say that I swear.' Anyone who is familiar with the handwriting of another (and the witness stated he was reasonably sure he had seen the insured's signature after he signed it) may testify as to his opinion of its authenticity to the best of his knowledge and belief. Hawkins v. Citizens' Bank & Trust Co., 18 Ga.App. 263(3), 89 S.E. 450. With this foundation laid it was not erroneous to admit the insurance application in evidence, the credit to be given the witness being for the jury. Brown v. McBride, 129 Ga. 92(1-a), 58 S.E. 702.

3. The...