Reserve Life Insurance Co. v. Meeks

174 S.E.2d 585, 121 Ga. App. 592, 1970 Ga. App. LEXIS 1288

• Court: Court of Appeals of Georgia
• Decided: March 20, 1970
• Docket: 44793
• Status: Published

Opinions

Deen, Judge.

The general rule, as recently reiterated in Allstate Ins. Co. v. Anderson, 121 Ga. App. 582, is that the knowledge of the agent being the knowledge of the principal, the insurer is estopped to void the policy because of misrepresentations in the application attached thereto where the agent, whose knowledge is attributable to the principal, was apprised of the true facts. Where, however, there is a limitation in the application on the authority of the agent sufficient to put the applicant on notice that the insurer will not be bound by the agent’s knowledge in the absence of actual communication thereof, such limitation of authority may prevent an estoppel from arising. It is obvious, however, that if the applicant is illiterate or blind or suffering from like disability, the mere fact that such limitation on the authority of the agent is written in the application will not presumptively put him on notice of its existence. Must he then procure some third person to read the application for him or be denied the right to contend that the agent fraudulently inserted wrong answers which the applicant could not read because the application also contained a limitation of the agent’s authority which he also could not read?

“The powers of the agent are, prima facie, coextensive with the business intrusted to his care and will not be narrowed by limitations not communicated to the person with whom he deals.” Clubb v. American Acc. Co., 97 Ga. 502, 513 (25 SE 333). Where the applicant can read, it can be presumed that he knows of the limitation of authority nothing else appearing; this presumption does not obtain where he is blind, illiterate, etc. West v. Carolina Housing &c. Corp., 211 Ga. 789 (89 SE2d 188) (requiring that an illiterate person obtain somebody else to read the document being executed) was overruled in Pirkle v. Gurr, 218 Ga. 424, 427 (128 SE2d 490). National Acc. &c. Ins. Co. v. Davis, 179 Ga. 595 (176 SE 387), holding that where an application containing false answers inserted by an agent was signed not “by reason of some misleading artifice,” the limitation of authority in the application would prevent an estoppel, was overruled in Stillson v. Prudential Ins. Co. of America, 202 Ga. 79, 82 (42 SE2d 121), where the court said Clubb must be followed. Curry v. Washington Nat. Ins. Co., 54 Ga. App. 590 (188 SE 741) was similar in its facts to and followed the decision in Nat. Acc. Ac. Ins. Co. v. Davis, supra, and cannot be followed here since it is in the same category with that disapproved case. The Stillson decision was not based on fraud of the agent, but on the fact that the applicant had a right to rely on the agent to put down what he told him. Tallent v. Safeco Ins. Co. of America, 99 Ga. App. 11, 13 (107 SE2d 331); National Life &c. Ins. Co. v. Goolsby, 91 Ga. App. 361, 365 (85 SE2d 611); Barber v. All American Assur. Co., 89 Ga. App. 270, 276 (79 SE2d 48).

Clubb and the other above cited cases clearly show that even though there is a limitation of authority on the agent’s power, in the application it must be communicated to the applicant where the agent fills in the false -answers. We may presüme this, nothing else appearing, where the applicant is literate, can see, and signed the policy, etc. But if he is handicapped in this respect, the burden is on the defendant to show that the limitation of authority was communicated to the applicant or that he- otherwise knew of it. ' '

These are jury questions. The evidence was in sharp conflict as to whether the insured dr the insurer’s agent was responsible for the false information in’ the application, but the jury decided these issues in favor of the plaintiff. The general grounds of the motion for new trial are without merit.

The defendant objected to the charge as given because it did not contain the following: “If a person cannot read the instrument, it is as much his duty to procure some reliable person to read and explain it to him before he signs it as it would be to read it before he signed it, if he were able to do so. And his failure to obtain a reading and explanation of it is such gross negligence as will estop him from avoiding it on the ground that he was ignoránt of its contents.” Such an instruction is tantamount to directing a verdict in favor of the defendant, should the jury believe the plaintiff’s evidence that she could not read, and would be erroneous for this reason. Secondly, it is not the law. “Where, however, one who can not read is induced to sign an instrument by the misrepresentations of the other party ás to its character or contents, he is not bound thereby. He may, ordinarily, rely upon the representation of the other party as to what the instrument is or as to what it contains; and his mere failure to request the other party, or someone else, to read it to him will not generally be such negligence as will make the instrument binding' upon him.” Grimsley v. Singletary, 133 Ga. 56, 58 (65 SE 92, 134 ASR 196); Pirkle v. Gurr, 218 Ga. 424, 426, supra. Thirdly, the charge actually given by the court as follows: “Onfe who signs a written document without reading it, unless prevented from doing so by some fraud or artifice, is chargeable with knowledge of its contents” is even broader and more favorable to the defendant that the charge requested, since if would apply to the plaintiff whether she was illiterate or not. This enumeration of error is without merit.

The plaintiff appellee, in replying to' the portion of Appellant’s brief dealing with this objection to the charge, says that “our contention is that the defendant is estopped to deny liability on account of the fraudulent misconduct of its agent in preparing the application . the question of literacy or illiteracy is not involved.” We do not take this to be an admission by the appellee that the appellant’s enumeration of error on .the charge has merit, but rather as a contention that the defendant is estopped whether the plaintiff was literate or not. The burden of proving error is, of course, on the appellant and it is the appellant here who is urging the applicability of the issue of illiteracy. Since the appellant has not carried the burden of showing error, the question of waiver by the appellee, if any, is not involved.

Judgment affirmed.

Bell, C. J., Pannell, Whitman, and Evans, JJ., concur. Jordan, P. J., Hall, P. J., Eberhardt and Quillian, JJ., dissent.