Opinion
32565.
DECIDED OCTOBER 11, 1949.
Complaint on life policy; from Fulton Civil Court — Judge Etheridge. April 13, 1949.
Middlebrooks, Bird Howell, Newton Craig, for plaintiff in error.
Louis M. Tatham, contra.
The court did not err in overruling the amended motion for a new trial for any of the reasons assigned.
DECIDED OCTOBER 11, 1949.
Earley E. Hearing brought suit in the Civil Court of Fulton County against the Liberty National Life Insurance Company to recover certain death benefits alleged to be due him under an insurance policy issued by the defendant on the life of his daughter, Bertha Mae Hearing. The trial resulted in a verdict for the plaintiff for the amount for which suit was brought, and judgment was entered thereon. The defendant's amended motion for a new trial was overruled, and the case is properly before this court for review.
The petition alleged: that the defendant had contracted to pay $500 death benefit to the plaintiff upon the death of the plaintiff's daughter; that she died on or about January 8, 1948, and that due proof of her death had been furnished to the defendant in accordance with the conditions of the policy.
The defendant's answer to the petition admitted the death of Bertha Mae Hearing, but denied liability upon the policy on the ground that the policy sued on never took effect because the insured was not in sound health on the date of the issuance of the policy, contrary to the provisions of the policy on this point as follows: "This policy shall take effect on its date of issue, provided the insured is then alive and in sound health, but not otherwise." The defendant answered further that the policy was void because it was obtained by fraud on the part of the insured inasmuch as the insured in her application for said policy wilfully made false and fraudulent representations as to her health, and fraudulently concealed material facts concerning her illness.
Earley E. Hearing, father of the deceased, testified: that the only time he remembered his daughter being sick was when she was a child about eight or nine years old, when she had her tonsils removed; that she had sore throat at that time, being in the hospital one day and one night; that when she returned home her health was all right as far as he knew; that in 1940, 1941, or 1942, his daughter's nerves were bad, and she went to Grady Hospital and that after she returned home her health was perfect, so far as he knew; that she would run to the store, about three-quarters of a mile, purchase groceries and run back, with no resulting illness so far as he knew; that his daughter was not subject to any type of fits, so far as he knew, and that his daughter was in good health, so far as he knew.
Sara Lillian Hearing, mother of the deceased, testified: that the only illness of the daughter was the matter of having tonsils removed; that after the tonsillectomy her health seemed all right with the exception of nervous attacks in 1940, 1941, 1942, and 1943, but nothing serious until a day or two before her death, at which time the family thought the daughter had a cold; that she was taken to the hospital and died within about two hours after reaching the hospital. The witness testified that her daughter did not have attacks, so far as she knew, but was nervous, according to the doctor's statements; that the daughter was nervous and had shortness of breath.
Delphia White, sworn on behalf of the plaintiff, testified in substance that Bertha Mae was normal, so far as she knew.
Earley Hearing Jr., brother of the deceased, testified: that he did not know anything was wrong with the deceased until she was carried to the hospital; that she complained of a cold two or three days before she was carried to the hospital.
C. E. Dyche, sworn on behalf of the plaintiff, testified: that he was a groceryman near where the Hearing family resided; that the deceased frequently came to his store to get groceries; that it was about a mile or more from his store to the home of the Hearings; and that he never knew of anything wrong with the health of the deceased.
The testimony of other witnesses, to our minds, developed nothing positive in favor of, or against either party at interest, and for this reason we shall not reiterate such testimony here.
The policy was secured June 16, 1947, and showed that the insured was 28 years of age at that time. This is an industrial policy with no application attached to and made a part of the policy.
1. The general grounds, and special ground 1 (called special ground 5 by counsel), go to the matter of whether or not the evidence supports the verdict. We have given the evidence somewhat in detail, and such evidence does not show that there was a condition which would show fraud in securing the policy. In fact, the evidence discloses that the deceased was perhaps nervous, and not completely developed mentally, deviating somewhat from the norm in this respect, but there is no positive evidence that there was a physical condition known to the applicant at the time of the securing of the policy which would show any fraud, or any unusual health condition. For this reason the general grounds and special ground 1 show no cause for reversal of the findings of the jury, and are therefore without merit.
2. Special ground 2 (called special ground 6 by counsel). contends that it was reversible error for the court to fail to charge the jury that if the insured was not in sound health on the date of the issuance of the policy, that the policy never did take effect and consequently no recovery could be had by the plaintiff. By way of argument, counsel argue the so-called "sound-health" clause should not be extended to industrial type policies where no examination is required, citing as authority for this contention (embraced in special ground 1 also), the case of National Life Accident Ins. Co. v. Green, 191 Miss. 581 ( 3 So.2d, 812, 136 A.L.R. 1510). Counsel also call our attention to 37 C. J., Insurance, p. 404, § 78, as further authority for the contention that the failure of the court so to charge is reversible error, and ask that the cases of Interstate Life Accident Ins. Co. v. McMahon, 50 Ga. App. 543 ( 179 S.E. 132), and Fowler v. Liberty National Life Ins. Co., 73 Ga. App. 765 ( 38 S.E.2d 60), be reviewed and reversed insofar as they extend to industrial policies and the interpretation given the "sound-health" clause in policies issued after medical examination. We hold that the foreign decisions cited are not binding on this court, and the facts are different from those in the present case, and we decline to consider reversing the decisions of this court cited above. There must be some method of determining when a person pays insurance policy premiums that such person may expect to benefit therefrom.
We agree that the court should always charge the jury on substantial issues raised in any case, as decided in Central Railroad Co. v. Harris, 76 Ga. 501, 511, and in many other cases, but we do not agree that the court failed to do this in the instant case. There is no merit in this ground.
The court did not err in overruling the amended motion for a new trial for any of the reasons assigned.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.