Prudential Insurance Co. of America v. Perry

174 S.E.2d 570, 121 Ga. App. 618, 1970 Ga. App. LEXIS 1292
CourtCourt of Appeals of Georgia
DecidedMarch 19, 1970
Docket44809
StatusPublished
Cited by45 cases

This text of 174 S.E.2d 570 (Prudential Insurance Co. of America v. Perry) 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.

Bluebook
Prudential Insurance Co. of America v. Perry, 174 S.E.2d 570, 121 Ga. App. 618, 1970 Ga. App. LEXIS 1292 (Ga. Ct. App. 1970).

Opinions

Eberhakdt, Judge.

Plaintiff testified in a deposition that when the company’s agent took the application he had related to the agent all of the facts and details concerning his wife’s eye trouble, including the names of all doctors who had treated her for it and that the agent, who was writing in the answers as the questions were asked, simply failed to enter the information; that he had asserted the company would not require or need all of the information and that an entry that she had been seen by Dr. J. Fair in December, 1967 for an “eye check-up” would be sufficient.

In his deposition the agent denied that Mr. Perry had given any information that was not fully reflected in the answers to the questions, and that the answers had been written as given him by the applicant. He denied having told Mr. Perry that anything less than the whole and full information would suffice.

[622]*622It should be observed that the applicant is bound by the answers recorded on the application, whether written by him or by the agent, absent any fraud on the part of the agent in deceiving him as to what was in fact written down as answers, or in preventing him from reading and ascertaining what was written down. Boykin v. Franklin Life Ins. Co., 14 Ga. App. 666 (2) (82 SE 60); National Acc. &c. Ins. Co. v. Davis, 50 Ga. App. 391 (2) (178 SE 320); Curry v. Washington Nat. Ins. Co., 54 Ga. App. 590 (2) (188 SE 741); s.c., 56 Ga. App. 809, 810 (194 SE 825); Rhodes v. Mutual Benefit Health &c. Assn., 62 Ga. App. 208, 210 (8 SE2d 685); Mutual Benefit Health &c. Assn. v. Marsh, 62 Ga. App. 425, 431 (8 SE2d 117); Life & Cas. Ins. Co. v. Davis, 62 Ga. App. 832, 834 (10 SE2d 129); State Farm Mut. Auto Ins. Co. v. Anderson, 107 Ga. App. 348 (1) (130 SE2d 144); Jessup v. Franklin Life Ins. Co., 117 Ga. App. 389 (1) (160 SE2d 612); American Liberty Ins. Co., v. Sanders, 120 Ga. App. 1 (2) (169 SE2d 342); Massey v. Cotton States Life Ins. Co., 70 Ga. 794; Shedden v. Heard, 110 Ga. 461 (2) (35 SE 707); Heard v. Shedden, 113 Ga. 162 (2) (38 SE 387); Johnson v. White, 120 Ga. 1010 (48 SE 426); Stillson v. Prudential Ins. Co. of America, 202 Ga. 79 (42 SE2d 121).

Insurance is a matter of contract, and the rules governing contracts and their making are applicable to insurance policies, including the application therefor. “There is no greater sanctity and no more mystery about a contract of insurance than any other. The same rules of construction apply to it as to other contracts.” Clay v. Phoenix Ins. Co., 97 Ga. 44, 53 (25 SE 417). Thus, the rule requiring an applicant to read the application and know what is in it before signing has its roots in the rule exemplified in Hill v. Western Union Telegraph Co., 85 Ga. 425 (11 SE 874, 21 ASR 166); Stoddard Mfg. Co. v. Adams, 122 Ga. 802 (50 SE 915); Truitt-Silvey Hat Co. v. Callaway & Truitt, 130 Ga. 637 (2) (61 SE 481); Weaver v. Roberson, 134 Ga. 149 (67 SE 662); Lewis v. Foy, 189 Ga. 596 (6 SE2d 788); Thomas v. Eason, 208 Ga. 822 (3) (69 SE2d 729); West v. Carolina Housing &c. Corp., 211 Ga. 789 (89 SE2d 188), and others of like tenor. Cf. Cotton States Mut. Ins. Co. v. Booth, 116 Ga. App. 410, 412 (157 SE2d 877). The reason for the rule is to [623]*623afford opportunity to correct any error and make it truthful, for when the applicant signs the application he is bound by the answers which have been inserted to the questions, absent any trick, artifice or the like used to procure his signature to it, and especially so when the application is attached to and becomes a part of the contract. Mutual Benefit &c. Assn. v. Marsh, 60 Ga. App. 431, 437 (4 SE2d 84).

Consequently, unless fraud against him appears, the answers. on the application are Perry’s answers, and he is chargeable with whatever effect they may have had. If they are incorrect, or if they are incomplete in any respect, the incorrectness dr incompleteness is his.

We can find no fraud on the part of the agent as against Mr. Perry. The answers were written in before Perry took the application for reading and signing, and he signed the application with the answers as entered thereon. No deception is claimed as to what was in fact written down. No change was made in the answers after he signed the application. He admits that he can and did read over the application before signing it — though he now says that he read it “briefly.” Nothing appears as to why he could not have taken all the time he wished to take in reading it, or that he was in any way prevented from doing so.

The question, then, is whether the answers were “complete and true” and whether “all statements and answers. . . are complete and true,” as he represented and declared them to be in signing the application. Is there a misrepresentation?

Question 2 (d) was as to whether Perry or his wife had “any known physical impairments, deformities, or ill health not covered by other questions” (the other questions asked specifically whether either of them had, or had been treated for any trouble with the heart, high blood pressure, lungs, kidneys, urinary system, stomach, intestines, tumors, cancer, diabetes, back or joints or nervous disorders). His answer to this question was “No.” It is beyond any cavil that Mrs. Perry did have an impairment not listed. She suffered from a very serious eye condition and her doctors for some time had been looking for a suitable donor so that she might have a transplant of the cornea. In his deposition Mr. Perry admits that she was suffering with [624]*624this trouble some years before when he married her. She had a medical history due to this trouble running back some six or eight years which required consultation with and treatment from Dr. Jinkens in Charleston where she lived before her marriage, Dr. Lester and Dr. Calhoun in Atlanta, Dr. Jeans, Dr. Whelchel and Dr. Fair in Augusta. Can there be any doubt of the materiality of this misrepresentation? An operation was contemplated. Her eye condition was deteriorating. The doctors were waiting for a donor so that the condition might be improved with a transplant, but so serious and urgent was her condition that hospitalization and an operation were required before a donor was found. Indeed, she was in the hospital when this policy was delivered, and the expense there incurred is the subject matter of this litigation.

“I hereby declare that all statements and answers to the above questions are complete and true. . .” Were they? Although the applicant did state that there had been attendance of physicians within the last five years, in answering as to the “names and addresses of physicians, hospitals and other institutions,” he listed Dr. Fair, asserting that Mrs. Perry had seen him for an “eye check-up” in December, 1967. If he had truthfully answered the question about “other physical ailments or ill health not covered,” the application would have shown her to be suffering from keratoconus, which Dr. Fair described as a deterioration of the cornea from recurrent ulceration and from which she lost vision in the left eye. Dr. Fair had been treating her for the eye condition for some two years. Other specialists who had treated her for the condition were not listed.

It was asked in the application, in the event any part

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Bluebook (online)
174 S.E.2d 570, 121 Ga. App. 618, 1970 Ga. App. LEXIS 1292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prudential-insurance-co-of-america-v-perry-gactapp-1970.