Opinion
39632.
DECIDED SEPTEMBER 6, 1962. REHEARING DENIED SEPTEMBER 20, 1962.
Action on insurance policy. Monroe Superior Court. Before Judge Brown.
Phillips, Brinson Ham, H. A. Stephens, Jr., Smith, Field, Ringel, Martin Carr, for plaintiff in error.
W. B. Mitchell, contra.
1. A misrepresentation in an application for life insurance that materially affects the risk will void the policy. Code § 56-908 (1933).
2. That a medical examination was procured on the applicant in connection with the application will not work a waiver of any material misrepresentation made by the applicant nor an estoppel to assert it as a defense against a suit on the policy, absent any showing of knowledge on the part of the insurer of the true facts at the time of the acceptance of the application and issuance of the policy.
DECIDED SEPTEMBER 6, 1962 — REHEARING DENIED SEPTEMBER 20, 1962.
On October 25, 1956, plaintiff, a man of intelligence, a graduate of Lincoln University who has done graduate work in other institutions, and who has for a number of years been principal of a public school in Monroe County, applied for a $7,500 life insurance policy upon the life of his son, then aged 10, and in Part I of the signed application in answer to the question as to whether the proposed insured had any sisters stated that there were two and that their health was good. Part II, consisting of some 12 questions relative to the health of the proposed insured, was left blank. One question made inquiry as to whether the proposed insured had ever suffered from "anemia, inflammatory rheumatism, cancer, goiter."
The medical examination, required by the company before any consideration of the application, was delayed until December 28, 1956, when plaintiff took his son to the doctor for it, though the agent who took the application left medical forms with plaintiff at the time of taking it and requested that the examination be obtained. In connection with the examination the doctor was required to and did ask questions and obtain answers as follows: "1. Number living sisters, and ages? 13, 16. State of health? Good. 3. Are you now in good health? Yes. 4. When were you last attended by a physician or consulted one? Nov., 1956. 5. For what disease? Cold. 6. Give details in full. Sore throat, chest cold. 7. Give name and residence of the physician who attended you. Dr. Ann Stuckey, Griffin, Ga. 8. Give name and residence of your medical adviser, or family physician, to whom you now refer for a certificate, if deemed necessary. Dr. A. W. Bramlett, Forsyth, Ga. 9. Has any physician ever given an unfavorable opinion of your health after either a formal or informal examination? No. 22. Have you ever had illness, disease, injury or operation other than as stated above? If so, give full particulars, date, duration, severity, etc. of each. None."
The answers were reduced to writing on a form and it was signed by the plaintiff and witnessed by the examining doctor. After the medical examination was completed and sent in to the company the policy was delivered on February 15, 1957, with the plaintiff named as beneficiary.
The insured died September 28, 1958, from a cerebral hemorrhage brought on by sickle cell anemia, from which he had been suffering since infancy. When the company learned of the cause of death it denied liability under the policy and tendered a return of the premiums previously paid, but plaintiff refused the tender and brought suit on the policy.
A form of anemia in which a large proportion of the red corpuscles in the blood are sickle cells, or cells in the form or shape of a sickle or crescent, resulting in a lowering of the hemoglobin or respiratory pigment which in the lungs combines loosely with oxygen. It may result in a cerebral hemorrhage, paralysis and terminate in death. Apparently it is a disease indigenous to the Negro race, since it has not been found in any individual other than one who is a Negro or part Negro since it was first discovered about 1910. Doctors who have devoted study to the matter assert it to be hereditary in nature and estimate that it occurs in from seven to twenty-five percent of the Negro population, depending perhaps upon the intensity of observance and the area in which observances have been made, and that about one in forty of those who have it develop a severity leading to death before reaching adulthood. If the affliction is not severe the person having it may live a normal life span. When the hemoglobin is reduced sufficiently the individual experiences a crisis, which can sometimes be relieved by means of a transfusion; but, as yet, there is no known specific for its cure.
A trial before a jury was had, and after the close of the evidence defendant moved for a directed verdict, which was denied. The jury returned a verdict for plaintiff, after which defendant moved for a judgment non obstante veredicto and for a new trial. Both motions were overruled and defendant assigns error upon the judgment overruling them.
1. The evidence disclosed that at the time of making the application and for a number of years prior thereto both the insured and one of his sisters had suffered from sickle cell anemia and that in the opinion of the doctors who had treated them their condition was one of severity. The sister had suffered a stroke because of it, and as a result was obliged to walk with the use of crutches. The insured had experienced critical episodes at fairly regular intervals, sometimes requiring hospitalization and blood transfusions. Plaintiff admitted in his testimony that he had been informed by the doctors as far back as 1954 concerning the condition of his daughter, and attending physicians testified that the condition of the insured was discussed with the parents in 1950, when it was first learned that the son was suffering from sickle cell anemia, and at other times prior to the date of the application. Thus there was a misrepresentation by the plaintiff, both when he stated that the sister was in good health and when he stated that the insured was in good health. Indeed, after he signed the application for the insurance on October 25, 1956, the son was treated by Dr. A. W. Bramlett on November 8, 1956, for sickle cell anemia, having low hemoglobin; again on November 10, 1956, for the same thing, when he was given a blood transfusion, and on November 13.
If the only misrepresentation here had been in the answering of the question as to whether the insured or his sister were "in good health," a jury question might have been presented, since that is a general, variable and relative term. See Gilham v. National Life c. Ins. Co., 104 Ga. App. 459 ( 122 S.E.2d 164); Guaranty Life Ins. Co. v. Martin, 44 Ga. App. 545 (1) ( 163 S.E. 288). But it is to be observed here that in addition to those misrepresentations the applicant represented that his son had never had any illness, disease, injury or operation other than a sore throat and chest cold. Thus there was a specific and material misrepresentation, taking this case out of the rule of Gilham, Martin and others similar.
In the face of that, plaintiff again misrepresented the facts to the medical examiner on December 28, 1956, when he stated that the insured had been treated only for a cold and sore throat, and that he had never suffered any other illness or disease.
Instances of crisis, requiring hospitalization and transfusions had occurred a number of times prior to the making of the application, and since the child was living in the home with the father at all times, plaintiff must have been fully aware of the matter. The sickling was severe, and, as was testified by the doctors who treated the insured, of a character that was calculated to be fatal.
However, even had plaintiff been unaware of the seriousness of his son's condition, the result would be the same, since a misrepresentation that is material to the risk will void the policy whether made in good faith or not. Preston v. National Life c. Ins. Co., 196 Ga. 217 (3) ( 26 S.E.2d 439, 148 ALR 897). Representations in the application and in the medical blank or form occupy the same status and have the same effect. Supreme Conclave Knights of Damon v. Wood, 120 Ga. 328(1) (47 S.E. 940).
The first comprehensive insurance code was enacted in 1912 (Ga. L. 1912, p. 119 et seq.), codified in Michie's Georgia Code 1926 Anno., and in Park's Anno. Code as Code §§ 2387 (1) et seq. and later in the Code of 1933 under Title 56. It was amended in 1914 (Ga. L. 1914, p. 99 et seq), in 1917 (Ga. L. 1917, p. 103), in 1923 (Ga. L. 1923, p. 113), in 1927 (Ga. L. 1927, p. 223); in 1929 (Ga. L. 1929, p. 241), and perhaps at other times. A new and comprehensive insurance code was enacted in 1960 (Ga. L. 1960, p. 289 et seq.).
Sec. 2479 of the 1926 Code provided: "Every application for insurance must be made in utmost good faith, and the representations contained in such application are considered as covenanted to be true by the applicant. Any variation by which the nature, or extent, or character of the risk is changed will void the policy."
And Sec. 2480 provided: "Any verbal or written representation of facts by the assured to induce the acceptance of the risk, if material, must be true, or the policy is void. If however, the party has no knowledge, but states on the representations of others, bona fide, and so informs the insurer, the falsity of the information does not void the policy."
Sections 56-820, and 56-821 of the 1933 Code carried forward the same provisions.
Sec. 56-908 of the 1933 Code provided, inter alia, ". . . after a policy shall be issued on the life of such person, the beneficiary . . . shall be entitled to collect the amount of such policy . . . when it shall mature, unless the applicant or beneficiary shall have been guilty of actual fraud or shall have made material misrepresentations in procuring such policy, which representations change the character and nature of the risk. . ."
These provisions were of force and effect when the contract here was written, but other and different provisions became effective when the insurance code of 1960 was adopted. See Code §§ 56-2407, 56-2409 (Ga. L. 1960, pp. 289, 659, 660).
A vice-president of the defendant insurance company testified unequivocally that if the true facts had been disclosed they would have been taken into consideration in accepting or rejecting the application, and if accepted, in determining the amount of the premium. Dr. Stuckey, one of the attending physicians, testified that "in severe cases [of sickle cell anemia] they usually do not survive late childhood," and that in the case of the insured his affliction was "in my opinion severe." Admittedly the insured died from it. The materiality is clearly established.
"The truth and materiality of representations are generally questions of fact, for determination by the jury; but where all the testimony relating to a question of fact excludes every reasonable inference but one, the issue becomes an issue of law, for determination by the court." Empire Life Ins. Co. v. Jones, 14 Ga. App. 647 (3), 648 ( 82 S.E. 62).
2. It is urged that since the insurance company obtained a medical examination of the insured before issuing and delivering the policy it was in position thereby to obtain full information as to the insured's physical condition and that this works a waiver of any misrepresentation that may have been made, or an estoppel against the company to assert such as a defense to an action upon the policy. This proposition has been adversely determined by the Supreme Court in Lee v. Metropolitan Life Ins. Co., 158 Ga. 517 (3) ( 123 S.E. 737). Neither the obtaining of an examination of an applicant nor the failure to obtain one will work either a waiver or an estoppel in the absence of a showing that the true facts were known to the insurance company when it accepted the application and delivered the policy. See Wiley v. Rome Ins. Co., 12 Ga. App. 186 ( 76 S.E. 1067). "Waiver is the intentional relinquishment of a known right." Estes v. Standard Fire Ins. Co., 66 Ga. App. 775, 778 ( 19 S.E.2d 35). Accord, Metropolitan Life Ins. Co. v. Dodd, 41 Ga. App. 243, 246 ( 152 S.E. 850); Metropolitan Life Ins. Co. v. Jones, 47 Ga. App. 687, 689 ( 171 S.E. 315). And see Liverpool c. Co. v. Hughes, 145 Ga. 716 ( 89 S.E. 817); Guaranty Life Ins. Co. v. Pughsley, 57 Ga. App. 588, 591 ( 196 S.E. 265). Knowledge of the true facts is likewise essential in a situation of this kind to give rise to an estoppel. German American Mut. Life Assn. v. Farley, 102 Ga. 720(3) (29 S.E. 615). If there were any estoppel arising out of the circumstances here it would work against the plaintiff, and not against the defendant, for it is the plaintiff who has failed to state material facts and has misstated others. "[Estoppel] arises when one by acts, representations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts." Carter v. Curlew Creamery Co., 16 Wn.2d 476 ( 134 P.2d 66, 74).
Under the insurance code of 1912 (Ga. L. 1912, pp. 119, 130) later codified in Michie's Code of 1926 as Code § 2501(1), it was provided, inter alia, that: "All insurance companies . . . writing life insurance in this State . . . shall be required to have made a strict medical examination of each and every person applying for life insurance, . . . and after a policy is issued on the life of such person, the beneficiary . . . shall be entitled to collect . . . when [the policy] matures, unless the applicant or beneficiary has been guilty of actual fraud or has made material misrepresentations in procuring such policy . . ." (Emphasis supplied).
The requirement for medical examination was eliminated by the act of 1927 (Ga. L. 1927, p. 223; Code of 1933, § 56-908). Nor was any such requirement included in the insurance code of 1960 (Ga. L. 1960, pp. 289 et seq.), now Title 56 in the Code as revised in 1960.
The trial court erred in overruling the motion for judgment non obstante veredicto, and its judgment is reversed with direction that judgment for the defendant be entered pursuant to the motion. Carlisle, P. J., and Russell, J., concur.