Chester v. State Farm Mutual Automobile Insurance , 121 Ga. App. 599 ( 1970 )

Whitman, Judge,

concurring specially. I concur in the majority opinion and am also of the opinion that a jury question is presented under the evidence here as to whether the pláintiff’s pre-cancellation of the policy was in effect a pre-emption so that technically, as the plaintiff maintains the defendant’s agent said in effect that the former insurer, Allstate, had not as a matter of fact canceled the policy, since it could not cancel a policy which had already been canceled by the insured. It is therefore also a jury question as to whether any misrepresentation of fact appeared on the application.

Hall, Presiding Judge, dissenting. On motion for rehearing the appellee says that it has difficulty understanding “the logic and attitudes of the various judges” in this case; Allstate Ins. Co. v. Anderson, 121 Ga. App. 582; Reserve Life Ins. Co. v. Meeks, 121 Ga. App. 592; and Prudential Ins. Co. v. Perry, 121 Ga. App., post. Many others will probably share this same difficulty. The concurring opinion of Judge Eberhardt in Lucas v. Continental Cas. Co., 120 Ga. App. 457 (170 SE2d 856), stating that “The the law is not really clear on the subject” is a good understatement of the present status, of the law. While there was a clear call for “clarification of the law” in that case, it is yet to come and the confusion remains.

Metropolitan, Life Ins. Co. v. Hale, 177 Ga. 632, cited in the majority opinion, which was not a full bench opinion and in which the majority opinion conceded that the cases of both courts are in “irreconcilable conflict,” dealt with an oral as distinguished from a written application. Does this rather tenuous rule on oral applications also apply to written applications which are attached to and made a part of the policy? It would seem to be beyond question that an oral application can never be made part of the policy. Is the situation the same where the parties have not left the matter to the fallible memory of witnesses but rather put the statement in writing? What has happened to the parol evidence rule? See 44 AmJur2d 974, Insurance, § 2035; Wheeler v. Fidelity & Cas. Co., 129 Ga. 237, 240 (58 SE 709); Mitchener v. Union Central Life Ins. Co., 185 Ga. 194, 195 (194 SE 530); Fowler v. Preferred Acc. Ins. Co., 100 Ga. 330 (28 SE 398). Can it be said that the memorandum opinion with two dissenting Justices in Reserve Life Ins. of Dallas v. Bearden, 213 Ga. 904 (102 SE2d 494), came to grips with the problem involved here when there was no mention of the parol evidence rule? Does this question involve a matter of such “gravity and importance” that it warrants the grant of certiorari by the highest court of this State? See Central of Ga. R. Co. v. Yesbik, 146 Ga. 620 (91 SE 873).

In my opinion, the bench, the bar and the general public would welcome a definitive ruling from our highest court. As the saying goes—“Old confusions die hard.” Owens v. Union Pac. R., 319 U. S. 715, 721 (63 SC 1271, 87 LE 1683).