Johnson v. American National Life Insurance , 134 Ga. 800 ( 1910 )

Lumpkin, J.

A policy of insurance was procured on the life of an aged negro, who was about seventy years old and in feeble health, as shown by the weight of the testimony. He represented himself to be fifty-five years of age and in good health, and the policy stated his age to be fifty-five years. There was evidence ' tending to show that he did not pay the premium himself, but it was paid by a white man, on whose place he lived. The person who paid the premium also appeared to have taken considerable interest in effectuating the insurance. The policy was dated January 22, 1908, and was assigned to the person who paid the premium, the assignment being dated January 30. The evidence showed that the assignment was prepared in advance, and was taken to the insured, along with the polic}*, and that then it was signed, and both together were delivered to the assignee. On February 3 the' insured died, twelve days after the date of the policy. Suit was brought by the assignee against the insurance company. The defendant set up fraud in the procurement of the policy, and that it was a wagering contract, but offered to return the premium paid.

The principal question involved is as to the effect of the act of August 17, 1906 (Acts 1906, p. 107). It declares, that, “from and after the passage of this act, all life and fire insurance policies issued upon the life or property of persons within this State, whether issued by companies organized under the laws of this State or by foreign companies doing business in this State, which contain any reference to the application for insurance, or the constitution, by-laws, or other rules of the company, either as forming part of the policy or contract between the parties thereto, or having any bearing on said contract, shall contain or have attached to said policy a correct copy of said application signed by the applicant, and of the by-laws referred to; and unless so attached and accompanying the policy, no such constitution or by-laws shall be received in evidence either as part of the policy or as an independent contract in any controversy between the parties to or interested in the said policy; nor shall such application or by-laws be considered a part of the policy or contract between such parties.” This act provides that where a reference is made in the policy of insurance to the application, a correct copy of the latter must be attached to the policy; and unless this is done, such application shall not “be considered a part of the policy or contract between such parties.” But this does not exclude an insurance company from showing that the policy was procured by fraud and misrepresentation. To consider the application as a part of the contract of insurance, and as forming a warranty or covenant, treats the policy as a valid contract and sets up one of its terms. To seek to set aside or repudiate the policy as having been obtained by fraud is to set up that there was no valid and binding contract of insurance. The two things 'are entirely different. The legislative enactment which declares that, under certain circumstances, an application for insurance mentioned in the policy shall not be considered a part of the policy or contract between the parties does not prohibit one of such parties from showing that, whatever the contract was, it was procured by the fraud of the other. 1 May on Insurance (4th ed.), § 29 C. Section 2097 of the Code of 1895, in so far as it provides that the representations contained in an application for insurance are considered as covenanted to be true, is modified by the act of 1906. But section 2098 provides: “Any verbal or written representations of fact by the assured to induce the acceptance of the risk, if material, must be true, or the policy is void. If, however, the party has no knowledge, but states on the representation of others, bona fide, and so informs the insurer, the falsity of the information does not void the policy.” And section 2099 declares that “A failure to state a material fact, if not done fraudulently, does not void; but the wilful concealment of such a fact, which would enhance the risk, will void the policy.” The court excluded the application; but evidence was admissible to show false representations and concealment.

•The tax digest was admissible. Gi-iffin v. Wise, 115 Ga. 610 (41 S. E. 1003); Western <& Atlantic B. Go. v. Tate, 129 Ga. 526 (59 S. E. 266). The registration book of voters was also admissible to throw light on the age of the insured. The charge of the court was not entirely accurate, in view of the sections of the code above cited, and of the provision in the policy, that, “If the age of the insured is incorrectly stated, the amount payable under this policy shall be the insurance which the actual premium would have purchased at the true ago of the insured.” But when the entire charge is considered together, and it is remembered that, if the insured was seventy years of age instead of fifty-five, he was not an insurable risk in this company, and that the premium would not have purchased any insurance at his true age, we do not think that any of the charges to which objection was taken should cause a new trial. The jury found for the defendant. The presiding judge approved their finding, and we can not say that he erred in so doing. Judgment affirmed.

All the Justices concur.