Opinion
44383.
SUBMITTED APRIL 9, 1969.
DECIDED APRIL 24, 1969.
Action on insurance policy. Wilkes Superior Court. Before Judge Stevens.
Orr Kopecky, Wilbur A. Orr, for appellant.
Lawson E. Thompson, for appellee.
Whether a misrepresentation in an application for life insurance is material to the risk is for resolution by the jury unless a finding of materiality is demanded.
SUBMITTED APRIL 9, 1969 — DECIDED APRIL 24, 1969.
The question for decision in this case is whether a misrepresentation made in an application which became a part of a life insurance policy was, as a matter of law under the evidence, a material misrepresentation so as to void the policy. The application contained the following question: "Has proposed insured ever consulted a doctor for, or been treated for, or been told he had (a) Anemia, leukemia, high or low blood pressure, a heart attack or rheumatic fever?"
To this question the applicant answered in the negative, whereas in fact he had been treated for high blood pressure both before and after the date of the application. The treating physician testified that he would characterize the blood pressure reading as a moderate hypertension.
On the question of the materiality of the misrepresentation, the only testimony was that given by William B. Anglin, the underwriter of the defendant company whose duties involved the review of applications for life insurance, their classification, selection, approval, etc. Anglin testified that had the question been answered in the affirmative the company would have made further inquiry into the health of the applicant before proceeding further. He also testified:
"Q. Does the answer in the negative to every question about the disease, does that require the issuance of the policy at the basic rate for that age? Would that entitle him to the basic, lowest rate for a person of his age when he answers every question in the negative regarding his health? A. If we had no other information as was in this case, it would entitle him to the basic rate as far as his health issue was concerned. Yes, sir. Q. Do you increase the rates on policies for certain risks that you do accept? A. Yes, sir. Q. Is an elevated blood pressure one of the things you increase the rate for? A. Yes, sir. Q. Would the extent of a particular illness determine whether you would increase the rate or reject the application entirely? A. Yes, sir."
However, he also testified: "Q. If this question had been answered yes, he suffered from high blood pressure, would that fact independent of the degree or extent of high blood pressure cause this . . . or would it require a different rate from the rate the policy was issued for? A. If I understand the question correctly, you're asking if we received this application and the man had just put down he had been treated for elevated blood pressure? Q. Yes. . . that fact by itself. A. It is most likely that it would have. Q. Can you give a positive answer to the question, Mr. Anglin? A. I can't answer it yes or no."
The jury returned a verdict for plaintiff and against the company on its defense of material misrepresentation, and the company appeals from the judgment on the verdict enumerating as error the overruling of its motion for directed verdict, judgment n.o.v., and for new trial.
1. The testimony of the underwriter, which is the only testimony relating to the materiality of the risk, appears to be somewhat contradictory. In one instance he testifies that elevated blood pressure is one of the things for which the premium rate is increased, although he does not indicate to what extent the blood pressure must be raised for a premium rate increase. In another instance he testifies that if the question had been answered in the affirmative, indicating a high blood pressure, he could not give a positive answer to the question of whether this fact alone, independent of the degree or extent of high blood pressure, would require a higher rate than the rate for which the policy was issued. The doctor's testimony was that the hypertension was moderate. Under this testimony and the testimony of the underwriter, which would indicate that the extent of the high blood pressure would determine the premium rate, a verdict for the company was not demanded, and the case was properly submitted to the jury to reconcile any conflicts in the underwriter's testimony under the principle that the materiality of false representations, when not indisputably established by the evidence, is a matter for determination by a jury. Life Cas. Ins. Co. v. Burkett, 38 Ga. App. 328, 336 ( 144 S.E. 29); Preston v. Nat. Life c. Ins. Co., 196 Ga. 217, 237 ( 26 S.E.2d 439, 148 ALR 897); Brown v. Mut. Life Ins. Co., 29 Ga. App. 794 (1) ( 116 S.E. 559); Empire Life Ins. Co. v. Jones, 14 Ga. App. 647 (3) ( 82 S.E. 62); Globe Indem. Co. v. Hall, 94 Ga. App. 628 ( 95 S.E.2d 759). As stated in Gilham v. Nat. Life c. Ins. Co., 104 Ga. App. 459, 462 ( 122 S.E.2d 164): "It must be remembered that an issue as to material misrepresentations, like questions as to negligence, proximate cause and similar matters, should ordinarily be submitted to the jury. Only where the evidence as a whole excludes every reasonable inference but one may the court so rule as a matter of law. Preston v. Nat. Life c. Ins. Co., 196 Ga. 217, supra."
Under other circumstances the misrepresentation might have been material as a matter of law. See Metropolitan Life Ins. Co. v. James, 37 Ga. App. 678 ( 141 S.E. 500).
2. The request that we assess damages on the ground that the appeal was filed for the purpose of delay only is denied.
Judgment affirmed. Bell, P. J., and Deen, J., concur.