Opinion
28213.
DECIDED JULY 11, 1940.
Complaint; from Baldwin superior court — Judge Jackson. October 30, 1939.
Martin, Martin Snow, for plaintiff in error.
McCullar McCullar, contra.
1. An action under the Code, § 56-519, to recover premiums paid on a contract of insurance induced by fraudulent and false representations of the defendant or its agents as to the form, nature, and character of the policy, shall be brought within four years after the right of action accrues, and the statute of limitations commences to run from the time the fraud is or should have been discovered by the person paying the premiums and with whom the contract of insurance was made.
2. Where the plaintiff did not bring suit against the defendant, under § 56-519, to recover premiums paid by her under contracts of insurance induced by fraudulent and false representations of the defendant or its agents within four years from the time such fraud was or should have been discovered by her had she exercised reasonable diligence, the suit was barred by the statute of limitations.
DECIDED JULY 11, 1940.
On January 25, 1939, Annie Walker filed suit against Life and Casualty Insurance Company of Nashville, Tennessee, in which she sought recovery of premiums paid by her on five policies of life insurance taken out by her upon the lives of her infant nieces and nephews, to whom she stood in loco parentis. It appeared from the plaintiff's petition, that on September 22, 1930, she contracted with the defendant for these policies which were represented by the defendant to be policies of insurance containing provisions whereby "after five years from that time that a loan could be obtained upon each policy" by "the beneficiary or policyholder;" that after the plaintiff had paid the premiums upon said policies for more than five years, she attempted to exercise the privilege of obtaining a loan upon these policies, and the defendant refused to make a loan, and it was thereupon discovered that these policies had no loan value and contained no provisions whereby the plaintiff beneficiary or the policyholder could obtain a loan thereon. The plaintiff alleged, that the defendant did not issue and deliver to her policies containing provisions and terms of the kind of policy represented by it; that she was informed by the defendant's agent that these policies had a loan value; that acting upon this representation she procured from the defendant these policies; and that she paid the premiums thereon, thinking that she had been sold the kind of insurance represented by the defendant as having been sold to her. She charged that these representations upon the part of the defendant were false, and that the defendant had thereby perpetrated a fraud upon her in that such contract of insurance was induced by fraud. She prayed judgment for recovery of the premiums paid by her from September 30, 1930, until the date of the filing of the suit. The defendant demurred generally and specially to the petition. One ground of demurrer was that the petition affirmatively shows "that if the plaintiff ever had any cause of action it is barred by the statute of limitations, in that the alleged fraud of the defendant occurred more than four years prior to the institution of this suit."
The plaintiff amended the petition and alleged that "the fraud and deceit complained of has only recently been discovered, having been discovered only a few weeks prior to the filing of this suit, and that she was prevented from discovering the same earlier by the fraud and misrepresentations of the defendant and its agents; the defendant's agents, who were collecting the insurance premiums weekly, continued to tell her that she would be paid the loan value and other benefits previously represented to her, without regard to what the policies stated, upon application; further, that upon making applications for these benefits that they took up her policies and receipts and books and refused to reply to her communications, making it impossible for her to ascertain the true status of her insurance." She further alleged as follows: "She shows that it was only after she employed attorneys, and the defendant even refused to give her attorneys any information, that she discovered the fraud, misrepresentation, deceit, and trickery herein complained of. She shows that she is a colored woman unaccustomed to business, and could not have learned of the fraud and trickery by reasonable diligence under her circumstances earlier, and that she has been diligent in every respect and has contributed in no manner to the damages herein complained of. . . Plaintiff shows that the defendant violated section 56-519 of the Code of Georgia of 1933, by making fraudulent and false representations as to the form, nature, and character of the policies sold to her, and by selling a different form and character of policy than that represented as being sold, and by fraudulently substituting and changing different kinds of policies after the original had been sold, and by making material misrepresentations as herein set out as to the benefits accruing under all of said policies; and that as provided in said section she is entitled to a refund of all of said premiums paid thereunder, and she brings said suit under said Code sections without regard to whether the same sounds in contract or in tort, and hereby strikes any inconsistent paragraphs in said original petition. Plaintiff further elects and proceeds under said Code section referred to, for a refund of her premium money paid under such circumstances. . . Plaintiff further . . shows that said action is brought under section 56-519 of the Code of Georgia of 1933 in the manner that said section contemplates that said action shall sound. . . Plaintiff shows that the defendant repudiated its contract of insurance with her, and refuses to give her any benefits whatever, and failed and refused to refund her premium money collected under misrepresentations." The defendant renewed its demurrer to the petition, and demurred to the amendment. The judge overruled the demurrer and the defendant excepted.
The Code, § 56-519, under which the plaintiff brings this action, declares as follows: "It shall be unlawful for any person, firm or corporation to make or cause to be made any fraudulent or false representations as to the form, nature and character of the policy offered for sale, and no person shall sell a different form or character of policy from that which he represents himself as selling, or make any other material misrepresentation as to the benefits accruing under any policy which he sells or offers for sale . . and any premiums paid on such policy may be recovered by such policy holder in any court having jurisdiction thereof." It is a fraud, therefore, under the allegations of the plaintiff's petition, for an insurance company to represent that the contract of insurance entered into contains provisions whereby the policyholder, at the expiration of a certain period, provided the policy is maintained in force, may have the right and privilege of obtaining a loan from the company thereon, and to issue and deliver to such person a policy of insurance which does not contain such provisions; and the person to whom such policy is issued and delivered, and who pays the premiums thereon to the insurance company therefor, may, under the above Code section, recover the premiums so paid from the insurance company in any court having jurisdiction. In such a case, however, the statute of limitations would commence to run from time the fraud is or should have been discovered by the person paying the premiums, and with whom the contract of insurance was made. 32 C. J. 1238. An action for damages for fraudulent inducement to enter into a contract must be brought within four years after the right of action accrues. Code, § 3-1002; Crawford v. Crawford, 134 Ga. 114 ( 67 S.E. 673, 28 L.R.A. (N.S.) 353, 19 Ann. Cas. 932); Frost v. Arnaud, 144 Ga. 26 ( 85 S.E. 1028).
It appears from the allegations of the petition that the contracts of insurance which the plaintiff contends she entered into with the defendant, because of the fraudulent misrepresentations upon its part that such policies had a loan value, were entered into on September 22, 1930. She contends that after more than five years, when she attempted to obtain a loan on these policies, she discovered that the policies sold to her were not as represented by the defendant, and that she had been defrauded. The present suit was instituted in 1939, almost nine years after these contracts of insurance were entered into. No sufficient reason appears why the plaintiff did not sooner discover the alleged fraud of the defendant. It does not appear that the plaintiff could not read; and even if she could not read, it does not appear that she made any effort to have the policies of insurance read to her. If the plaintiff had read these policies when they were delivered to her, or within a reasonable time thereafter, she would have discovered that the policies had no loan value. It does not appear that there was any conduct on the part of the defendant or its agents tending to prevent the plaintiff from reading the policies of insurance delivered to her, or, if she could not read, any conduct upon their part tending to prevent her from having such policies read and explained to her. Where one negligently fails to read a written contract and relies upon the representations of the other party as to what the contract contains, such negligence is generally fatal to the case of one seeking relief because of misrepresentations of the other party at variance with the terms of the contract, where he was not prevented from reading such contract by any trick or contrivance of the other party. Chicago Building c. Co. v. Summerour, 101 Ga. 820 ( 29 S.E. 291); Johnson v. White, 120 Ga. 1010 ( 48 S.E. 426). It does not appear that the plaintiff could not read, and the petition does not show a legal excuse for her failure to do so. It affirmatively appears that the plaintiff did not bring suit against the defendant to recover the premiums paid by her under these contracts of insurance, which she claims were induced by fraud on the part of the defendant and its agents, within four years from the time such fraud was or should have been discovered by her had she exercised reasonable diligence.
There does not appear to have been such conduct upon the part of the defendant and its agents as prevented the plaintiff from discovering the fact that she had been sold policies of insurance different in terms from those represented by the defendant's agents as being sold to her. From an inspection of the policies themselves it could have been discovered that they were not the kind of policies which the plaintiff had applied for. The verbal representations by the defendant that these policies were of a kind which the plaintiff applied for, and under which she had a loan value, would not constitute conduct upon the part of the defendant which prevented the plaintiff from discovering the fact that she had not been issued the kind of policies for which she applied, and which the defendant represented were being sold to her. The allegations in the amendment to the petition that the plaintiff "could not have learned of the fraud and trickery by reasonable diligence under her circumstances earlier, and that she has been diligent in every respect and has contributed in no manner to the damages herein complained of," are conclusions not borne out under the facts alleged. It appears that the plaintiff's cause of action, if any, is barred by the statute of limitations. The court erred in overruling the demurrer based upon this ground.
Judgment reversed. Sutton and Felton, JJ., concur.