Damon v. Wood

• Decision Date: 08 June 1904
• Citation: 47 S.E. 940,120 Ga. 328
• Parties: SUPREME CONCLAVE KNIGHTS OP DAMON et al. v. WOOD.
• Court: Georgia Supreme Court

47 S.E. 940

120 Ga. 328

SUPREME CONCLAVE KNIGHTS OP DAMON et al.

v.WOOD.

Supreme Court of Georgia.

June 8, 1904.

life insurance—application—false statements—burden of proof.

1.Where an applicant for life insurance covenants in his application that the statements made to the medical examiner are true, and these statements are made a part of the contract of insurance and form the basis of such contract, any variation in any of them which is material, whereby the nature or extent or character of the risk is changed, will avoid the policy, whether the statement was made in good faith or willfully or fraudulently.

¶ 1.SeeInsurance, vol. 28, Cent. Dig. §§ 540, 684, 685.

2.In civil cases the burden of proof may be carried by a preponderance of the evidence, which is that superior weight of the evidence upon the issues involved which is sufficient to incline a reasonable or impartial mind to one side of the issue rather than to the other.

(Syllabus by the Court.)

Error from City Court of Macon; Robert Hodges, Judge.

Action by J. P. Wood against the Supreme Conclave Knights of Damon and other's.Judgment for plaintiff, and defendants bring error.Reversed.

Hall & Wimberly and E. P. Mallary, for plaintiffs in error.

Hardeman, Davis, Turner & Jones, for defendant in error.

SIMMONS, C. J.The courts of the United States and of several of the states have for several years been trying to get away from the earlier decisions in regard to warranties in insurance policies.All of the earlier decisions, so far as we are aware, hold the insured bound by the strict law of warranty, whether the statement warranted be material or not; holding that the parties had theright to agree that a representation was material, though in fact it was not.Latterly some of the courts have strained to construe the statements of the insured as representations wherever they were not unequivocally made warranties.Thus it has been held that where, in the application, certain statements were covenanted to be true, if the policy or contract did not declare them to be warranties, but referred to them as representations or statements, they would be construed as mere representations, so that, if immaterial, their falsity would not avoid the policy.SeeMoulor v. Ins. Co., Ill U. S. 335, 4 Sup. Ct. 466, 28 L. Ed. 447;Phoenix L. I. Co. v. Raddin, 120 U. S. 183, 7 Sup. Ct. 500, 30 L. Ed. 644;Northwestern Mut. L. I. Co. v. Woods(Kan. Sup.)39 Pac. 189;Alabama Gold L. I. Co. v. Johnston, 80 Ala. 467, 2South. 125, 59 Am. Rep. 816.But the courts in this state are not troubled with these finer distinctions and strained constructions.Mr. T. R. R. Cobb, the great lawyer and codifier, who incorporated the principles of law and equity into our Code, doubtless saw the great injustice and hardship to the insured under the earlier decisions of the courts.It was to change this, we apprehend, that he in 1860 placed in the Code which was adopted in 1863 what are now sections 2097and2098 of the Civil Code of 1895.These sections are as follows:

"Sec. 2097.Every application for insurance must be made in the 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.

"Sec. 2098.Any verbal or written representations 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."

Thus it will be seen that a policy cannot now be avoided upon the ground of the falsity of a representation, though warranted, unless that representation be material, and the variation from truth be such as to change the nature, extent, or character of the risk.So this court lias uniformly construed these sections, as far as we can ascertain.Wherever an applicant for life insurance makes material representations in his application or examination, and covenants that they are true, under the above section of the Code, and these representations are made the basis of the contract of insurance, such contract is...