Sovereign Camp, W.O.W., v. Beard
| Decision Date | 20 January 1921 |
| Docket Number | 11551. |
| Citation | 105 S.E. 629,26 Ga.App. 130 |
| Parties | SOVEREIGN CAMP, W. O. W., v. BEARD. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
"Where both parties to a cause consent that the court direct a verdict, though each moves that it be directed in his own favor, neither party can complain that the court erred in directing a verdict, though the losing party may except upon the ground that the verdict directed is erroneous." Mims v. Johnson, 8 Ga.App. 850, 70 S.E. 139 (1).
"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." Civ. Code 1910, § 2480. The questions presented for determination in such a case are: (1) Was the representation false? (2) Was it made in reference to a matter material to the risk? Mutual Life Ins. Co. v Bolton, 22 Ga.App. 566, 569, 96 S.E. 442. The trial judge, by consent of parties, having passed on these questions, and the effect of his judgment being that any misrepresentation of fact made by the insured related only to immaterial matters and did not constitute any misstatements affecting the risk, and there being sufficient evidence to support such finding, the verdict will not be disturbed.
The act of 1914 "for the regulation and control of benefit societies," etc. (Acts 1914, p. 100, § 4; Park's Code, § 2564), does not change the law, so as to render a certificate of insurance issued by a fraternal benefit society null and void on account of untrue, but immaterial statements contained in the application; and this is the rule, although the statements contained in the application are warranted to be true, with the further proviso that, if any of them be untrue, the policy shall become null and void.
Error from Superior Court, Colquitt County; W. E. Thomas, Judge.
Action by Ruby Beard against the Sovereign Camp, Woodmen of the World. Judgment for plaintiff, and defendant brings error. Affirmed.
L. L Moore, of Moultrie, for plaintiff in error.
D. P. Starr and Shipp & Kline, all of Moultrie, for defendant in error.
Only the third division of the syllabus requires elaboration, since counsel for plaintiff in error, in their admirable brief, properly concede that the judge who determined the case, sitting as both court and jury, was authorized by the evidence to find that the misstatements of fact in the application were not of a material character, and that in view of the decisions of the Supreme Court and of this court, if this contract is to be construed by the same rules of law as contracts of insurance issued by old-line companies are, the judgment below should be affirmed. As was said by Judge Pottle speaking for this court in the case of Ætna Life Ins. Co. v. Conway, 11 Ga.App. 557, 560, 75 S.E. 915, 917:
"It is immaterial whether the statements made by the applicant for insurance were representations or warranties, since the effect of such statements must be determined by the provisions of these sections of the Code [sections 2479, 2480, 2481, 2483] without reference to whether the statements may be regarded technically as representations or as warranties."
The argument of counsel is therefore based entirely upon the contention that the recent statute above referred to, when taken in connection with the terms of the contract here involved, imposes a different rule, and that in the case of a fraternal benefit society the warranties must be strictly enforced as such, whether material or immaterial, and consequently it did not lie within the province of the court below to pass upon the question of their materiality. Section 4 of the act of 1914 (Park's Code, § 2564t), which counsel rely upon, is, indeed, broad and sweeping in the language used, and provides as follows:
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Camp v. Beard
... ... 20, 1921.(Syllabus by the Court.)Error from Superior Court, Colquitt County; W. E. Thomas, Judge.Action by Ruby Beard against the Sovereign Camp, Woodmen of the World. Judgment for plaintiff, and defendant brings error. Affirmed.L. L. Moore, of Moultrie, for plaintiff in error.D. P ... ...