32 Ga. App. 87 | Ga. Ct. App. | 1924
(After stating the foregoing facts.) Section
In the case of Ingram v. Hilton & Dodge Lumber Co., supra, and in the discussion just referred to, it must be borne clearly in mind that the question was whether the memorandum could be treated as evidence, whether the statements therein contained had probative value as such. When a document is tendered in evidence, if it be “admitted” at all, it is admitted as evidence. The extent of the ruling in the Ingram case is only to the effect that it cannot be treated as evidence for any purpose. In the instant case, as
Had the testimony of the witness not been in substantially literal accord with the statements contained in the memorandum, and had he himself not indicated by his evidence before the jury that such was the case, the reading of its contents to the jury would have presented a very different question. But it might be re- ■ marked that, in a case such as that, the paper could not have been used for the purpose for which its use was permitted. It is a fact in the case that the witness, in attempting to narrate a conversation had with the insured about 10 years previously, was able to refresh his recollection by means of a memorandum written and signed by himself at the time the conversation occurred, and which purported to contain the answers then made by the insured. This is a fact or circumstance which the defendant was entitled to have the jury consider in determining the weight and value of the witness’s testimony; not that the memorandum itself was admissible in evidence for the defendant for any purpose; not that the writing could be used as evidence for the purpose of proving the statements therein contained, since, in the language of the court in the Ingram case, as evidence it was “clearly inadmissible for any purpose.” But the record shows that the writing was not
The court charged the jury as follows: “The two questions you are to decide in this case are whether these answers, to which I have called your attention, were false or not, and if false, 'whether they were material to the risk that the company was asked to assume in is'suing the policy. What I mean by material is what effect would these answers, if false, have on the company, or its . authorities in deciding whether the policy should issue or not. If you believe that these answers are false, and if you believe the contentions of the defendant, and that if the insured, Mulkey, had answered tnithfully, if you believe the contentions of the defendant are true on the -subject, if you further believe the company luould have been influenced to decline to issue the policy, then these answers would be material. In other words, what the law means by materiality or whether these questions are material or not is, did they influence and affect, or would they influence and ■ affect the judgment of the authorities of the company in determining whether the policy should issue or not? If you believe they would, then they would be material; if you believe they would not, they would not be material. So that under these instructions it is a question of fact for you to say whether the an
Plaintiff’s counsel cite Empire Life Insurance Co. v. Jones, 14 Ga. App. 647 (2) (82 S. E. 62), and Life Insurance Co. of Va. v. Pate, 23 Ga. App. 232 (2), 234 (97 S. E. 874), in which the following language was used: “A material representation is one that would influence a prudent insurer in determining whether or not to accept the risk, or in fixing the amount of the premium in the event of such acceptance.” Counsel for defendant in error cite numerous authorities, the language of which sustains the charge as sound, even though it be assumed that the effect of the language was to make the question of materiality turn upon the question whether the defendant company was influenced by the alleged misrepresentation. See Empire Life Ins. Co. v. Jones, supra (14 Ga. App. 647, 656, 659); Mutual Life Ins. Co. v. Bolton, 22 Ga. App. 566, 569 (96 S. E. 442); Miller v. Maryland Casualty Co., 193 Fed. 343, 350; Mutual Life Ins. Co. v. Hilton, 211 Fed. 31, 34; Mulville v. Adams, 19 Fed. 887; Cooley’s Brief on the Law of Insurance, vol. 3, p. 1953; 16 Am. & Eng. Enc. L. (2d ed.), 933; May on Insurance (3d ed.), §§ 184, 195; Joyce on Insurance (2d ed.), vol. 3, p. 3057, § 1892. Without going into a discussion of the reasoning of defendant’s counsel to the effect that, even were it possible to assume that these portions of the charge were inaccurate within themselves, any such deficiency was cured by other and different portions of the charge, we are of the opinion that in the instant case the court, in defining materiality, as pertaining to any misstatement of the insured, submitted to the jury the question whether in their opinion the alleged misstatements were such as “would” influence and affect the judgment of the governing authorities of the insurance company. Repeatedly he charged in effect that if the jury believed that the misrepresentations (if made) were such as “would” influence them, they were material, and if they were such as would not influence them, they