Franklin v. Georgia Life & Health Insurance

Court of Appeals of Georgia

Franklin v. Georgia Life & Health Insurance

76 S.E.2d 445, 88 Ga. App. 227, 1953 Ga. App. LEXIS 1051

CourtCourt of Appeals of Georgia

DecidedMay 1, 1953

Docket34365

StatusPublished

This text of 76 S.E.2d 445 (Franklin v. Georgia Life & Health Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Franklin v. Georgia Life & Health Insurance, 76 S.E.2d 445, 88 Ga. App. 227, 1953 Ga. App. LEXIS 1051 (Ga. Ct. App. 1953).

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Opinions

Felton, J.

There was no evidence of fraud on the part of the insured. The only question is whether there was sufficient evidence to authorize the jury to find that the insured was seventy years of age at the time of the issuance of the policy. The policy was issued June 15, 1950. The defendant sought to prove that the insured was seventy years old at the time of the issuance of the policy, in two ways: first, by showing that he had been on the welfare-department rolls for a sufficient length of time; and second, by his age as it appeared to a witness. Assuming for the sake of argument only that the insured’s age could be proved by the mere testimony of a witness that the insured had been on the welfare rolls long enough to show that he was seventy years old on June 15, 1950, if he was put on such rolls on account of his age, the proof does not show the reason for the insured’s being on the rolls. It might have been by reason of his blindness. So the first type of evidence was insufficient to show that the insured was seventy years old on June 15, 1950. Miss Harris, a witness for the defendant, testified as follows: “I am connected with the public health department of Wilkes County and have been in Wilkes County since November, 1949. I have visited a colored man by the name of John Henry Huff. I visited him at the home of Lila Franklin on July 13, 1950, [229]*229and at the home of Lizzie Sutton on February 8, 1951. He was a very old man. He was far beyond fifty at the time I visited him. I couldn’t state definitely the condition of his eyes; he appeared to be blind. I would say he was at least seventy years of age at the time I saw him. I did not make any investigation as to his age then except from appearance.” Whether Miss Harris meant that the insured appeared to be at least seventy on July 13, 1950, or February 8, 1951, her testimony was not sufficient to authorize a finding that the insured was seventy years old on June 15, 1950.

.It is not necessary to pass on the special grounds.

The court erred in denying the amended motion for new trial.

Judgment reversed.

Sutton, C. J., Gardner, Townsend, and Carlisle, JJ., concur. Worrill, J., dissents.

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Felton, J.

There was no evidence of fraud on the part of the insured. The only question is whether there was sufficient evidence to authorize the jury to find that the insured was seventy years of age at the time of the issuance of the policy. The policy was issued June 15, 1950. The defendant sought to prove that the insured was seventy years old at the time of the issuance of the policy, in two ways: first, by showing that he had been on the welfare-department rolls for a sufficient length of time; and second, by his age as it appeared to a witness. Assuming for the sake of argument only that the insured’s age could be proved by the mere testimony of a witness that the insured had been on the welfare rolls long enough to show that he was seventy years old on June 15, 1950, if he was put on such rolls on account of his age, the proof does not show the reason for the insured’s being on the rolls. It might have been by reason of his blindness. So the first type of evidence was insufficient to show that the insured was seventy years old on June 15, 1950. Miss Harris, a witness for the defendant, testified as follows: “I am connected with the public health department of Wilkes County and have been in Wilkes County since November, 1949. I have visited a colored man by the name of John Henry Huff. I visited him at the home of Lila Franklin on July 13, 1950, [229]*229and at the home of Lizzie Sutton on February 8, 1951. He was a very old man. He was far beyond fifty at the time I visited him. I couldn’t state definitely the condition of his eyes; he appeared to be blind. I would say he was at least seventy years of age at the time I saw him. I did not make any investigation as to his age then except from appearance.” Whether Miss Harris meant that the insured appeared to be at least seventy on July 13, 1950, or February 8, 1951, her testimony was not sufficient to authorize a finding that the insured was seventy years old on June 15, 1950.

.It is not necessary to pass on the special grounds.

The court erred in denying the amended motion for new trial.

Judgment reversed.

Sutton, C. J., Gardner, Townsend, and Carlisle, JJ., concur. Worrill, J., dissents.

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76 S.E.2d 445, 88 Ga. App. 227, 1953 Ga. App. LEXIS 1051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-v-georgia-life-health-insurance-gactapp-1953.

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