Fowler v. Liberty National Life Ins. Co. , 73 Ga. App. 765 ( 1946 )

1. Where a policy of life insurance provided, "This policy shall take effect on its date of issue, provided the insured is then alive and in sound health, but not otherwise," and the uncontroverted evidence showed that the insured was not in sound health at the time the policy was issued, for the reason that he had become insane or mentally deranged after the submission of the application for insurance and before the policy was issued, and there was no evidence of a waiver of this provision of the policy by an officer of the company having authority to make such waiver, the court did not err in directing a verdict for the defendant.

2, 4. Special grounds 5, 6, and 7 of the motion, which assign error on rulings of the trial court with reference to the admission and rejection of evidence, show no error.

5. The evidence demanded the verdict for the defendant, no error of law appears, and the trial judge did not err in overruling the plaintiff's motion for a new trial.

DECIDED APRIL 25, 1946. Mrs. Hughey H. Fowler, as beneficiary, brought suit against Liberty National Life Insurance Company, in the civil court of Fulton County, to recover the face value of a policy of life insurance, together with interest and attorney's fees. The policy was issued by the company, on November 27, 1944, to the plaintiff's son, Lenton T. Dodson, who died December 25, 1944. A copy of the policy was not attached to the petition, the plaintiff alleging that it had been turned over to the company along with proof of loss and retained by it.

The defendant in its answer admitted that it had refused to pay the plaintiff, but denied that its refusal was in bad faith, and set out that the policy had never taken effect because it provided in part: "Effective Date — This policy shall take effect on its date of issue, provided the insured is then alive and in sound health, but not otherwise. . . Entire Contract — This policy contains and constitutes the entire agreement between the company and all other interested parties. . . No agent shall have the power or authority to change, alter, or waive any of the terms or conditions, or any portion thereof of this policy, nor shall any change, alteration, or waiver of any kind or manner be made except by endorsement signed by the president or secretary." And the insured was not in sound health on November 27, 1944, the date of issue of the policy, but had "on that date and for quite a time prior thereto" a disease called dementia paralytica and was also afflicted with syphilis; that the insured was admitted as a patient to the Milledgeville State Hospital on November 25, 1944, and remained there as a patient until his death on December 25, 1944. For further plea and answer, the defendant alleged that the policy was void because it was obtained by fraud, in that the insured, in his application for insurance, wilfully made false and fraudulent representations as to his health and habits, and fraudulently concealed material facts concerning his illness and medical treatment in certain specified particulars.

On the trial, the plaintiff testified in part: That she was the mother of the insured; that on November 24, 1944, he became delirious and she thought he was insane and called the police, who came and carried the insured to Decatur and placed him in jail; that, on November 25, 1944, the insured was carried to the State Hospital at Milledgeville for the insane, and was in that hospital on November 27, 1944; that the insurance policy was brought to her house and delivered to her after the insured had been carried to the State Hospital at Milledgeville; that the man who delivered the policy told her it should have been delivered about three weeks prior to that time; that she found her son in the condition testified to about two days before she called the police. She also testified to having made a demand for payment on the company and its refusal to pay after she had furnished it with due proof of loss.

The stepfather of the insured testified in part: That he had known the insured since the insured was a little boy; that the insured's health was always good and he was working on the date the application for insurance was obtained; that the agent of the company who took this application did not ask the insured any questions concerning his health or as to whether or not he had any kind of disease or illness or disorder of the brain, spine, or nervous system, and the insured did not make any statement with reference to them; that he was present when the insured was carried to Decatur by the policemen; and that the insured was tried before a lunacy commission, and died in the hospital at Milledgeville.

Two sisters of the insured testified in part: That the agent who took the application for insurance asked the insured only two questions, and these were his age, and to whom he wanted the policy payable; and that the insured signed the application for insurance, but it was not read to him. One of these sisters testified that, on November 7, 1944, at the time the application for insurance was obtained, the insured looked "just fine in respect to his health."

Other witnesses, including neighbors of the insured, testified that, on and prior to November 7, 1944, the health of the insured appeared to be good, and that the insured had worked and was working on that date.

The attorney for the plaintiff testified as to the value of his services, and that the defendant had tendered the sum of $2.43, representing the premiums paid on the policy, and had paid this sum into court.

The assistant physician of the Milledgeville State Hospital testified that the insured was admitted to the hospital and came under his care on November 25, 1944; that the insured remained under his care until his death on December 25, 1944; that the insured was not in sound health on November 25 or November 27, 1944, and, in his opinion, the insured was suffering from an organic brain condition caused from a syphilitic infection known as paresis or dementia paralytica, which were synonymous terms; that, after his admission to the hospital, complications arose and the insured began having convulsions and developed a high elevation in temperature and a bronchial pneumonia, which was secondary to the dementia paralytica.

The policy sued on and the proof of loss were placed in evidence. Over objections of the plaintiff, the application for insurance, signed by the insured and providing in part, "I agree . . that the policy shall not be binding upon the company unless upon its date and delivery I shall be alive and in sound health," was placed in evidence by the defendant company. On objections by the defendant, the court refused to allow the plaintiff to introduce in evidence the original transfer permit, which authorized the transportation of the body of the insured from Milledgeville to Decatur for burial.

The trial judge directed a verdict for the defendant; the plaintiff's motion for a new trial, which was amended, was overruled, and the exception here is to the judgment overruling the plaintiff's amended motion for a new trial. 1. The application for insurance, which was signed by the insured, the original receipt given the insured at the time the application for insurance was obtained and the first premiums paid, and the policy of insurance all provided that the policy should take effect on the date of its issue, provided the insured was then alive and in sound health, but not otherwise. This provision was valid and binding on the parties. "That the parties to an insurance contract can make the actual delivery of the policy during the good health of the insured a valid and binding condition precedent to the liability of the company, is certain."Glover v. New York Life Insurance Co., 27 Ga. App. 615, 616 (109 S.E. 546). The policy in the present case limited the powers of the agents of the company to change or vary the provisions of the policy by providing that only the president or secretary of the company had the power to change or vary its terms. "The insured is bound by plain and unambiguous limitations upon the power of the agent contained in his policy." RelianceLife Insurance Co. v. Hightower, 148 Ga. 843 (a) (98 S.E. 469). The requirement in a policy of insurance, that the insured be in sound health at the date of the issuance of the policy, refers to a change in health between the time of taking the application for insurance and the date of the issuance of the policy, where the policy is issued without medical examination and without the application for insurance being attached to and made a part of the policy of insurance. Interstate Life Accident Insurance Co. v. McMahon, 50 Ga. App. 543 (179 S.E. 132). The term, "sound health," as used in a life-insurance policy means that the insured enjoys such health and strength as to justify the reasonable belief that he is free from derangement of organic functions, or free from symptoms calculated to cause reasonable apprehension of such derangement, and to ordinary observation and to outward appearance his health is reasonably such that he may with ordinary safety be insured upon ordinary terms, and that he has no grave impairment or serious disease and is free from any ailment that seriously affects the general soundness and healthfulness of the system. Life Casualty Insurance Co. ofTenn. v. Higdon, 67 Ga. App. 679 (21 S.E.2d 270), and citations.

Under the evidence in this case, a finding was demanded that the insured was in apparent good health and was working at the time the application for insurance was obtained on November 7, 1944, and that between the dates of the application for insurance and the issuance of the policy on November 27, 1944, the insured became mentally deranged or insane and, at the request of the plaintiff, he was placed in jail; that after a trial before a lunacy commission, the insured was committed to the State Hospital at Milledgeville, where he was received as a patient on November 25, 1944, and where he remained as a patient until his death on December 25, 1944. Under the uncontroverted facts of this case, the insured was not in sound health, within the provisions of the policy, on the date of its issuance, November 27, 1944, and the trial judge did not err in so holding and in directing a verdict for the defendant; it having been stipulated that the company had tendered the sum received by it as premiums on the policy to the plaintiff, and had deposited this sum in court at the time it filed its answer. Strickland v. Gulf LifeInsurance Co., 70 Ga. App. 365 (28 S.E.2d 314). It follows that the trial judge did not err in overruling special ground 4 of the motion for a new trial, which assigned error on the direction of the verdict for the defendant.

The cases of National Life Accident Ins. Co. v. Martin,35 Ga. App. 1 (132 S.E. 120), National Life Accident Ins.Co. v. Williams, 53 Ga. App. 677 (187 S.E. 145), Clubb v.American Accident Co., 97 Ga. 502 (25 S.E. 333), GuarantyLife Ins. Co. v. Johnson, 60 Ga. App. 293 (3 S.E.2d 773),Davis v. Kirkland, 1 Ga. App. 5 (58 S.E. 209), andFielder v. Davison, 139 Ga. 509 (77 S.E. 618), cited and relied on by the plaintiff in error, are distinguishable on their facts from the present case, and the principles and rulings stated in those cases do not require or authorize a ruling in the present case different from the one herein made.

2. The court did not err in excluding from evidence the original transfer permit, authorizing the transportation of the corpse of the insured from Milledgeville to Decatur for burial, for any reason assigned in special ground 5 of the motion.

3. Special ground 6 of the motion for a new trial shows no error. It is contended in this ground that the trial judge erred in allowing in evidence the application for insurance, executed by the insured on November 7, 1944, over the objection of the plaintiff that nothing in it appeared to be in the handwriting of the insured, except his signature, and the evidence showed that the insured did not answer the questions contained in it. The uncontroverted evidence showed that the insured signed this application, and there are no pleadings or evidence that he could not read or that he was prevented from reading it before he signed it. Under the facts of this case, the trial judge did not err in allowing the same in evidence.

4. It is contended in special ground 7 of the motion that the court erred in excluding the testimony of a sister of the insured, to the effect that the agent of the defendant company, at the time he handed the insured a receipt for the premiums paid, told the insured that, "if he died before he got to the top of the hill, he would be protected by the insurance." The objections of the defendant to this testimony were that it was irrelevant and immaterial, that the contract of insurance was in writing and would show its provisions, and that the law prohibited an oral contract of insurance. There was no error in excluding the testimony. All contracts of insurance, including life insurance, "to be binding, shall be in writing." Code, §§ 56-801, 56-911. Nor can such a contract be partly in writing and partly in parol. Athens Mutual Ins. Co. v. Evans, 132 Ga. 703 (4) (64 S.E. 993). "The writing being unambiguous, parol evidence as to what was said by the parties at the time it was executed will not be admitted to vary or alter the terms of the writing." Wheeler v. Fidelity Casualty Co., 129 Ga. 237,240 (58 S.E. 709). Moreover, in the present case, the policy specifically provided that it contained the entire agreement between the company and all interested parties, that no agent had the power or authority to change, alter, or waive any of the provisions of the policy, and that no change, alteration, or waiver of any kind should be made except by endorsement signed by the president or secretary of the company. Fowler v. PreferredAccident Ins. Co., 100 Ga. 330 (2) (28 S.E. 398).

5. The evidence demanded the verdict for the defendant, no error of law appears, and the trial judge did not err in overruling the plaintiff's motion for a new trial.

Judgment affirmed. Parker, J., concurs.