Opinion
34365.
DECIDED MAY 1, 1953. REHEARING DENIED MAY 15, 1953.
Action on life insurance policy. Before Judge Perryman. Wilkes Superior Court. September 29, 1952.
Lawson E. Thompson, for plaintiff in error.
Earle Norman, contra.
The evidence did not authorize the finding that the insured was over seventy years of age at the time of the issuance of the policy on his life, in which event the insurance company would be liable only for the return of the premiums paid.
DECIDED MAY 1, 1953 — REHEARING DENIED MAY 15, 1953.
Lila Franklin sued Georgia Life Health Insurance Company for the use of T. A. McLendon, assignee, to recover principal, interest, and attorney's fees on a life insurance policy issued to John H. Huff, and in which Lila Franklin was named beneficiary. The defendant defended upon the grounds that the policy was procured by fraud, and that the insured represented that he was 54 years of age in his application for insurance when in fact he was seventy; and further upon the ground that the policy provided that, "If the correct age is over 70 years next birthday at date of issue, the company's liability shall be the sum of the premiums paid." The defendant tendered the premiums into court. The jury found for the defendant, and the plaintiff excepts to the denial of her motion for new trial.
There was no evidence of fraud on the part of the insured. The only question is whether there was sufficient evidence to authorize the jury to find that the insured was seventy years of age at the time of the issuance of the policy. The policy was issued June 15, 1950. The defendant sought to prove that the insured was seventy years old at the time of the issuance of the policy, in two ways: first, by showing that he had been on the welfare-department rolls for a sufficient length of time; and second, by his age as it appeared to a witness. Assuming for the sake of argument only that the insured's age could be proved by the mere testimony of a witness that the insured had been on the welfare rolls long enough to show that he was seventy years old on June 15, 1950, if he was put on such rolls on account of his age, the proof does not show the reason for the insured's being on the rolls. It might have been by reason of his blindness. So the first type of evidence was insufficient to show that the insured was seventy years old on June 15, 1950. Miss Harris, a witness for the defendant, testified as follows: "I am connected with the public health department of Wilkes County and have been in Wilkes County since November, 1949. I have visited a colored man by the name of John Henry Huff. I visited him at the home of Lila Franklin on July 13, 1950, and at the home of Lizzie Sutton on February 8, 1951. He was a very old man. He was far beyond fifty at the time I visited him. I couldn't state definitely the condition of his eyes; he appeared to be blind. I would say he was at least seventy years of age at the time I saw him. I did not make any investigation as to his age then except from appearance." Whether Miss Harris meant that the insured appeared to be at least seventy on July 13, 1950, or February 8, 1951, her testimony was not sufficient to authorize a finding that the insured was seventy years old on June 15, 1950.
It is not necessary to pass on the special grounds.
The court erred in denying the amended motion for new trial.
Judgment reversed. Sutton, C. J., Gardner, Townsend, and Carlisle, JJ., concur. Worrill, J., dissents.
I dissent from the judgment of reversal on the general grounds of the amended motion for new trial, for the following reasons: The insurance policy on the life of the insured in the present case was issued on June 15, 1950. A Miss Harris, a witness for the defendant, testified that she visited the insured on July 13, 1950, which was about a month after the insurance of the policy, that he appeared to be blind, and that in her opinion he was "at least 70 years of age at the time I saw him." Another witness for the defendant, who was a member of the public health department of Wilkes County, and who had occasion to visit the insured, testified that "in my opinion he was a very old man." The weight and credibility of this testimony was for the jury. The fact that other testimony of the witness, Miss Harris, showed that her statement as to the age of the insured was an opinion based on casual observation of his physical condition did not render such evidence without probative value. See Dixie Manufacturing Co. v. Ricks, 28 Ga. App. 160 (1) ( 110 S.E. 454); Merry Bros. Brick Tile Co. v. Holmes, 57 Ga. App. 281, 283 ( 195 S.E. 223).