1. An objection to testimony which is otherwise admissible, on the grounds that the defendant is estopped to urge fraud in the procurement of in insurance policy as a defense, is without merit, where the defendant is not relying on fraud in the procurement to vitiate the policy and the testimony is relevant as to another defense on which the defendant does rely, that the disability is not covered under the terms of the policy.
2. A sufficient foundation was laid for the introduction of secondary evidence to prove the execution of an application for insurance introduced by the defendant where the maker, the insane insured, was unable to testify and the sole witness to the instrument could not be located.
3. Unsworn statements of persons not offered as witnesses are inadmissible to prove the truth of the facts set out in such statements. Accordingly, the trial court erred in allowing the defendant to introduce a sickness and accident c]aim form filled out by a physician not a witness in the case, either for the purpose of proving the truth of statements therein contained or for the purpose of contradicting another form signed by the same physician and introduced by the plaintiff, since neither document had any probative value except to show that the policy terms had been complied with.
4. It was not error to admit parol testimony as to prior epileptic seizures of the insured on which claims had been paid by another insurance company, the purpose of such testimony not being to show the payment of claims, but the existence of the seizures.
5. The defendant insurance company failed to prove by competent evidence that the disability from which the insured is presently suffering is the same as that from which he suffered in 1948 and other years prior to that of the issuance of the policy.
Addie Wooten as guardian of Ellis Wooten, an incompetent, filed an action against the Life Insurance Company of Georgia on a policy of health and accident insurance seeking disability payments in the sum of $300 plus interest and attorney fees. The defendant's answer as amended denied liability and pleaded fraud in the procurement of the policy based on the fact that the application, made a part of the policy by reference, stated that the applicant was in good health and had never had fits or convulsions, whereas the applicant knew at the time of making said statements that he had been subject to epileptic fits during his entire lifetime and was not in sound health, and further that the policy is void insofar as this claim is concerned because recovery is sought for a disability in existence prior to the date of the policy and accordingly not covered thereby. Policy provisions proved on the trial of the case included the following: "Effective date. This policy shall take effect on the date of issue provided the premium is paid and the insured is in sound health and free from bodily injuries . . . The company will not be liable under sections 4, 5, 6 or 7 on the first page for the results of disease contracted or accident occurring before the date of issue." Upon proof that the company had accepted premium payments subsequently to the disability on which recovery is here sought, the defendant ceased to rely as a defense upon fraud in the procurement so as to void the entire policy, but admitting it remains in force and effect, sought to prove by evidence introduced on the trial that the plaintiff had suffered from epilepsy for a number of years, had had frequent epileptic fits prior to his application for insurance, and is not covered under the policy terms for this disability. Evidence is undisputed that he is about 25 years of age and has been committed to Milledgeville State Hospital on a diagnosis of psychosis with epilepsy.
The trial resulted in a verdict in favor of the defendant. The plaintiff moved for a directed verdict before verdict, and after verdict moved for judgment notwithstanding the same. He also filed a motion for a new trial on the general grounds which was amended by the addition of 4 special grounds. The overruling of these motions is assigned as error.
1. The first special ground of the amended motion for a new trial assigns error on the admission of the testimony of a witness as to fits and convulsions suffered by the insured for a number of years prior to the issuance of the policy on the ground that the testimony is inadmissible because the defendant is estopped to urge fraud in the procurement of the policy as a defense. Since fraud in the procurement would void the entire policy (Code 56-824) except as to the life insurance feature which had become incontestable, and since the district manager testified: "This policy includes any disease the insured may have after the policy is issued but excludes any disease which the insured may have had prior to the date of the policy. I still contend the policy is in force. We do not pay it because it does not cover that disease," it is obvious that the defendant was not relying on fraud in the procurement as a defense. This assignment of error is accordingly without merit.
2. The second special ground objects to the admission in evidence of the insured's application for the insurance policy on which this action is based, on the ground that neither Ellis Wooten, the insured, nor T. L. Clark, the witness to the application, identified the same and that Clark's signature was not satisfactorily accounted for. It is necessary to produce the subscribing witness where the party executing the written instrument does not testify to its execution (Code 38-706 (5)) unless the witness cannot be produced and sworn (Code 38-706 (2)). In such case, proof of handwriting may be resorted to by the testimony of any witness who shall swear that he knows or would recognize the handwriting. Code 38-708. In this case there was testimony that Clark, a former employee of the defendant, could not be located, and a witness testified "I am reasonably sure that this is the signature of Ellis Wooten on this paper shown me . . . I have a mental picture of his signature but don't say that I swear." Anyone who is familiar with the handwriting of another (and the witness stated he was reasonably sure he had seen the insured's signature after he signed it) may testify as to his opinion of its authenticity to the best of his knowledge and belief. Hawkins v. Citizens Bank & Trust Co., 18 Ga. App. 263 (3) (89 S. E. 450). With this foundation laid it was not erroneous to admit the insurance application in evidence, the credit to be given the witness being for the jury. Brown v. McBride, 129 Ga. 92 (1a) (58 S. E. 702).
3. The plaintiff, in order to show compliance with the terms of the insurance policy, introduced in evidence two "Sickness and accident claims" signed by Dr. M. E. Smith of the Milledgeville State Hospital. On these forms the question "How long has patient suffered from this disease?" was left unanswered. These forms were dated in September, 1954. The defendant gave the plaintiff notice to produce another such form filled out by Dr. Smith and dated in April, 1954, and the plaintiff produced the same. It appears that on this form the question "How long has patient suffered from this disease" was answered "1938." Objection was made to the introduction of this evidence on the ground that it was hearsay. This objection should have been sustained. None of the forms filled out by Dr. Smith were competent evidence as to the facts therein recited by him, but were merely statements made by one not under oath or subject to cross-examination. The existence of any one of these forms might be relevant to show that the paper existed and had been tendered to the defendant in compliance with policy terms; none of them would be admissible solely for the purpose of proving the statements therein contained as independent facts upon which recovery might be based. At best, it is no more than a record or memorandum of the physician's findings. "Before a memorandum made for the purpose of preserving a record of a given fact or transaction can, in any event, be admitted in evidence as original testimony, it must affirmatively appear that it was made by the witness in connection with whose testimony it is offered, and that testimony must show absolutely the genuineness and correctness of the memorandum." Phenix Insurance Co. v. Hart, 112 Ga. 765 (4) (38 S. E. 67). The contents of this instrument were not admissible to contradict or impeach the contents of the claim forms introduced by the plaintiff for the reason that the contents of the former were inadmissible for the purpose of proving the truth of the statements therein made. Accordingly, a new trial should have been granted on this ground of the motion for a new trial.
4. It was not error to admit the testimony of the agent of another insurance company to the effect that Ellis Wooten told him, in regard to a policy with such company, in 1948, that he had fits; that sick claims were paid to the insured for epileptic fits and convulsions at that time. Since the agent was testifying from his own knowledge and investigation, the testimony was not subject to the criticism that the claims filed by Wooten were the highest and best evidence of these facts. This ground is without merit.
5. Since the defense rests entirely upon the theory that the illness of the insured, psychosis with epilepsy, is not covered under the terms of the policy because of the fact that the insured suffered from epilepsy at the time he took out the insurance, the defendant insurance company necessarily has the burden of proving that the disease upon which the present claim for benefits is founded existed prior to the date of the application and issuance of the policy. The defendant offered evidence which would have authorized the jury to find he had suffered from epileptic seizures for a number of years prior to the policy date of 1951, including the year 1948, and his present disability and its nature are not disputed. There is, however, no evidence in the record, other than that erroneously admitted in the claim form filled out by Dr. Smith, who did not appear and testify, which shows any continuity between the prior and subsequent seizures of the insured, nor does it appear that he was not in sound health at the time the policy was delivered. This court cannot take judicial notice of the progress of disease or the incidence of illness, and we are unprepared to say, in the absence of any testimony whatever to this effect, that the seizures shown in 1948 and those from which the insured suffered in 1953 were one and the same, with no intervening period of freedom from disease in between. The causal connection between such attacks is a subject for expert testimony and not for judicial notice.
Since the evidence in the record did not demand a verdict for the plaintiff, it was not error to overrule the motion for judgment notwithstanding verdict, but it was error to overrule the motion for a new trial for the reasons set out in division 3 of this opinion.
ON MOTION FOR REHEARING
Plaintiff insists, on rehearing, that since she made out a prima facie case, and since this court held that the evidence relied upon by the defendant to show continuous affliction by epilepsy before and after the execution of the contract of insurance so as to avoid the policy as to this disease was improperly admitted, she is entitled also to have the case reversed on the judgment of the trial court overruling her motion for a judgment notwithstanding the verdict.