Interstate Life & Accident Co. v. Bess

134 S.E. 804, 35 Ga. App. 723, 1926 Ga. App. LEXIS 1094

• Court: Court of Appeals of Georgia
• Decided: September 18, 1926
• Docket: 16730
• Status: Published

Opinion

Bell, J.

This was an action by the beneficiary of an insurance policy in which it was stipulated that “In ease of misstatement of age of the insured the company will only be liable for the amount payable according to its table at the proper age, and in the event the proper age exceeds the maximum age at which the company will grant policies, the policy shall be void.” The insurer pleaded that it would not issue a policy of insurance upon the life of a person over 55 years of age; that the insured had declared his age to be 54 years, and that the contract was entered into on that basis, whereas he was over 70 years of age at the time; that the policy was procured by fraud and that there was no liability there! under. If there was a written application, it was not attached to the policy or referred to therein. Limitations on the authority of the agent who represented the insurer in the negotiations which culminated in the contract appeared only in the policy, and were as follows: “No person except the president or secretary has the power on behalf of the company to make or modify this or any other contract of insurance, or, in the event of lapse, to reinstate this policy, or to extend the time of payment of any premium, and the company will not be bound by any promise, representation or action of other than the above.” There was evidence which would have authorized the inference that the allegations of the defendant’s plea were true. The jury found in favor of the plaintiff. The defendant filed a motion for a new trial, which was overruled, and it excepted. Such of the special grounds of the motion for a new trial as would seem to require discussion are referred to in the headnotes. Since the application was not in writing and attached to the policy, the insurer could not defend upon the ground of material misrepresentations not amounting to actual fraud. The failure to make .the application a part of the contract differentiates the case from such eases as Supreme Conclave Knights of Damon v. Wood, 120 Ga. 328 (1) (47 S. E. 940), where it was held that a material misrepresentation will avoid the policy, whether -the statement was made in good faith or wilfully or fraudulently. Another fact which it is necessary to bear in mind in the instant case is in reference to the limitations upon the authority of the agent. Since they were contained only in the policy, they are not deemed to have reference to conditions which were existing at the inception of the contract. The case, therefore, falls within one of the classes which were excluded by the question which was before the Supreme Court in New York Life Ins. Co. v. Palten, 151 Ga. 185 (106 S. E. 183). See also Reliance Life Ins. Co. v. Hightower, 148 Ga. 843 (98 S. E. 469); Puckett v. Metropolitan Life Ins. Co., 32 Ga. App. 263 (122 S. E. 791). In a case like the present, if the agent had actual knowledge of the facts which by a stipulation in the contract would render it void, the insurer could not set up such facts as a defense. But before the knowledge of the agent could work a waiver on the part of his prin- ■ cipal, the knowledge must have been actual. Constructive 'knowledge would not be sufficient for that purpose. The court charged the jury in effect that if the agent, by proper inquiry, could have ascertained the truth, his principal would be held to have waived any fraud on the part of the insured. Since the evidence did not demand a finding that the agent had actual knowledge, the charge was error. If the agent did not actually know of the fraud, the defendant would not be bound merely because the agent ought to have known thereof. As to the materiality of a misstatement as to age, see Johnson v. American &c. Ins. Co., 134 Ga. 800 (6) (68 S. E. 731); Maddox v. Southern Mutual Life Ins. Asso., 6 Ga. App. 681, 684 (65 S. E. 789). It is unnecessary to add 'anything further to what is said in the headnotes. The court erred in refusing a new trial.

Judgment reversed.

Stephens, J., concurs. Jenkins, P. J., concurs in the judgment.