All American Life & Casualty Co. v. Saunders

186 S.E.2d 328, 125 Ga. App. 7, 1971 Ga. App. LEXIS 722

• Court: Court of Appeals of Georgia
• Decided: November 16, 1971
• Docket: 46258
• Status: Published

Opinions

Quillian, Judge.

"In cases where the application for insurance is attached to and becomes a part of the policy, in order to avoid the policy for a misrepresentation of the applicant made in the application, the insurer need only show that the representation was false and that it was material in that it changed the nature, extent, or character of the risk and this is true although the applicant may have made the representation in good faith, not knowing that it was untrue. Preston v. Nat. Life &c. Ins. Co., 196 Ga. 217, 229 (26 SE2d 439, 148 ALR 897); General Assurance Corp. v. Roberts, 92 Ga. App. 834, 837 (90 SE2d 70).” Gilham v. National Life &c. Ins. Co., 104 Ga. App. 459, 460 (122 SE2d 164). See Mutual Benefit Health &c. Assn. v. Bell, 49 Ga. App. 640 (176 SE 124). "An applicant is prima facie charged with knowledge of the contents of an application signed by him, but this may be rebutted. If one in fact makes truthful answers to an agent who nevertheless mistakenly or fraudently records them otherwise on the application, and the applicant is for some reason prevented from ascertaining the discrepancy and signs the application, the company will be estopped from avoiding liability for misrepresentation. Stillson v. Prudential Ins. Co. of America, 202 Ga. 79 (43 SE2d 121).” Jessup v. Franklin Life Ins. Co., 117 Ga. App. 389 (2) (160 SE2d 612). However, there was no evidence to indicate that such was the case here. The plaintiff testified that he could read and there was no evidence that he was prevented from reading the application, therefore he was bound by the statements made in the application. State Farm Mut. Auto. Ins. Co. v. Anderson, 107 Ga. App. 348 (1) (130 SE2d 144).

The plaintiff contends the reason he stated in the application that he had not received any medical treatment in the last 10 years was because the agent told him that chiropractors were not considered doctors. The application contained the following statement: "I declare that all statements and answers herein are complete and true to the best of my knowledge and belief and are made by me to obtain the insurance applied for, and I agree that (1) the company shall not be bound by any promise or statement made by any agent or other person, unless same be reduced to writing and approved by the company.” Therefore, the company would not be bound by the agent’s statement. See Puckett v. Met. Life Ins. Co., 32 Ga. App. 263 (122 SE 791). In the application the plaintiff stated that he had never applied for or received a pension disability payment. However, the evidence is undisputed that he had received disability payments from three different insurance companies prior to the time he made the application for the sickness and accident policy. While ordinarily whether misrepresentations are material is a question for the jury, where the evidence excludes every other reasonable inference except that they were material, no issue is presented on that point for the jury to determine. See Jefferson Standard Life Ins. Co. v. Henderson, 37 Ga. App. 704, 706 (141 SE 498); Southern Surety Co. v. Fortson, 44 Ga. App. 329, 339 (161 SE 679). The materiality of the misrepresentations cannot be doubted and, as a matter of law, such statements influence the actions of a prudent insurer. See Sovereign Camp WOW v. Parker, 36 Ga. App. 695, 696 (138 SE 86).

The trial judge erred in failing to grant the defendant’s motion for a directed verdict.

2. In view of the ruling made in Division 1 of the opinion the remaining enumerations of error are not passed upon.

Reversed with direction that a judgment be entered for the defendant.

Bell, C. J., Jordan, P. J., Hall, P. J., Eberhardt and Pannell, JJ., concur. Deen and Evans, JJ., dissent. Whitman, J., not participating.