Southern Life Insurance v. Wilkinson

Trippe, Judge.

1. The question made in the third.ground of the motion for a new trial, is, as to the admissibility of the testimony of J. W. Warren, by whom it was proposed to prove certain admissions of Mrs. Wilkinson, one of the plaintiffs. This is the first point we notice — the first and second grounds being generally that the verdict is contrary to law and the evidence, which, under the judgment we render, it is unnecessary to consider. The court, on the trial, ruled out these admissions. In this we think there was error. The policy of insurance recites that the premium was paid by the beneficiaries thereof, the plaintiffs. It is made payable to them jointly, and they bring a joint action to recover the amount of insurance. The Code, section 3784, provides that “the admission of a party to the record is admissible in evidence, when offered by the other side, except in the following cases: 1st. In case of a mere nominal party or naked trustee. 2d. When there are several parties with no joint interest, the admission of one cannot be received unless the issue is of such a character that the effect of the admission can be restrained to him alone.” Other exceptions are stated which do not affect this question. There is nothing in this enactment which changes the old rule as laid down by Greenleaf and Phillips, so far as it is applicable to the point we are considering, but it is rather a statutory indorsement of it. Greenleaf says “if the parties have a joint interest in the matter in suit, whether as plaintiffs or defendants, an admission made by one is, in general, evidence against all:” Gr. Ev., 1, 174. In 1 Phill. Ev. 378, it is thus stated: “It appears to be. a general principle that in a civil suit by or against several persons who have proved to have a joint interest in the decision, a declaration made by one of those persons, concerning a material fact within his knowledge, is evidence against him and against all who are parties with him in the suit.” It is admitted that the interest must be joint, and that a mere community of interest, as Mr. Green-leap styles it, is not sufficient to render the admission of one party evidence against his co-party, and the cases of co-executors, tenants in common, and trustees are given to show this. In such cases there is not a joint interest that will make one individually liable on the declaration of his co-exeeutor, co-trustee or co-tenant. But where the parties to a suit, either as plaintiffs or defendants, set up in a joint suit a joint claim, resting on one and the same contract, with an issue applying to them jointly, the declarations or admissions of one are evidence against his co-plaintiff or co-defendant: 8 Bing, 309; 1 Stark. R., 488; 17 Mass., 222; 23 Maine, 69; 4 Harr. & M., 346; 8 Mo., 627; 9 Humph., 750; 4 Yates, 532.

2. No witness who is not an expert as to the matter about which he is testifying, can give an opinion unless he states the facts on which that opinion is founded. This rule applies to one by whom it is proposed to prove the condition of the health of a party. We did not understand counsel in the argument to disagree on this point. Tested by this rule, it was not competent for the witness, Brown, to state that when the person, about whom he was testifying, “ matured in life, his diseased condition developed,” especially when it was intended thereby to prove that he suffered from a particular disease. He should have gone further and stated the facts as to the development of that disease. Nor was it sufficient to let it in, when the witness said “he was told that his (witness’) liver was affected,” and that the party referred to “ had symptoms like his” (witness’.) This was too uncertain and indefinite. He neither said it was true that he himself had a diseased liver, or stated anything showing it, or even gave his own opinion that it was so. His only authority was, that he was told it. By whom ? Had he stated that it was by a physician who attended him and administered to him for that disease, the question would be different. But it would be too loose a rule to allow testimony like that to be received, to establish the fact that a person at a particular time had a particular disease.

3. It is only necessary to say in reference to the testimony of Sasser and Willis that the grounds upon which the court put the refusal to rule out or exclude their testimony, need not exist at any future trial. It may be said that if a party objects to the answers of a witness to cross-interrogatories put by himself, the proper rule is to withdraw those questions. We do not say that by not withdrawing them he loses all right to move afterwards to have them and the evidence withdrawn from the jury by the court: 10 Georgia, 186; 13 Ibid., 511. We can very easily conceive where the other party may have acted on that part of the testimony in the further progress of the cause, and perhaps rested his case on it — that, in a certain stage of it, to-wit: after the argument is concluded or the charge given to the jury, or all witnesses dismissed, the question would be largely within the discretion of the court. As this difficulty will doubtless not occur hereafter, nothing now need be said on this point.

4. The same may be said as to the notice to produce the family bible. Any defect in- it may be cured by another notice. We do not think the court erred in holding that a notice to produce the “father’s family bible,” did not require the production of the one described by the witness.

5. Was the bible which was described by the witness admissible? As the court put its refusal to grant the new trial' on the ground that it was not, and as the question was discussed in the argument and will certainly be presented again, we will consider it. Section 3772 of the Code provides that “pedigree, including descent, relationship, birth, marriage and death, may be proved either by the declarations of deceased persons related by blood or marriage, or by general repute in the family, or by.genealogies, inscriptions, family trees, and similar evidence.” We know of no rule requiring that the “genealogy, inscription, family tree, or similar evidence,” should be actually written by the father or the mother. If the registry is recognized by either as such — -that is, by the mother, the father being dead — is kept by her, and after her death goes into the possession of a daughter, is in the handwriting of another daughter, who is deceased, and is still preserved in the family, it comes within the terms “similar evidence,” and is certainly equivalent to “declarations of a deceased person related by blood or marriage,” even if it be not competent under other words used in the section quoted. The fact that the witness who stated all this added that the mother said it was copied by the daughter, and that he and the family did not acknowledge the record as correct, does not render it incompetent. He did not say in what it was not considered correct, nor did he say that the mother, or the daughter in whose handwriting it was, did not consider it correct. The facts stated by him might be considered by a jury in determining the weight to be given to the registry as evidence, for it certainly is not conclusive, and it is subject to be weakened or strengthened by all the proof in reference to it.

6. The question as to giving notice of the death of the person whose life was insured to the company within a reasonable time, was one for the jury, under proper instructions, to be given them in charge, and was not to be absolutely passed upon by the court. It was not error to refuse to charge as requested by defendant on that point.

7. Nor was it. error to charge the jury, that “in considering the question as to fraud, you may consider if you think it will throw any light on the question, how and by whom the insurance was gotten up, whether at the instance of the insured or by the agent of the company.” It was only saying that they might consider the circumstances attending the whole transaction.' The matter referred to might be of greater or less weight, as the jury should weigh it in the light of all the other evidence.

8. We think the court went too far in. its charge to the jury, as excepted to in the eleventh ground of the motion for a new trial. The defendant introduced evidence to show that misrepresentations had been made in the application as to the age of the insured. Without giving an opinion as to the strength or force of that testimony, we say the court below should have refrained from charging that a portion of that testimony did not show what'the defendant claimed it did. The application stated the age of the insured to be forty-two, and two of his brothers to be forty-four and forty-six, respectively. That indicated pretty strongly that there were two years between their several births. From the testimony' of one of those brothers, it seemed he was about four years older than the application made him. If the difference between applicant’s age and that brother’s was represented by him to be four years, or two years, (and did not defendant have the right so to argue?) would it not suggest that the applicant was as much older than the age stated by him, as his elder brother was proved to be over the age which was given to him in the application? Certainly, when all this testimony is looked to, the charge of the court went beyond its powers, as indicated in section 3248 of the Code.

9. One of the questions in the application was, whether the applicant “ever had any serious illness, local disease, affection, or personal injury.” There was no error in the construction given to this by the court. The charge was, that the word “serious” applied to and qualified each of the terms “local disease,” “affection” and “personal injury.” Any other construction would have required the applicant to comply with an impossibility, and would be trifling with his rights and with common sense. To have asked one over forty years of age to state every “affection,” “local disease” or “personal injury” which he might have had or endured in his lifetime, whether serious, or light and trifling, would be absurd. No one could possibly meet such a question, and it would make the catalogue nonsense as to all practical purposes when it appeared. The object of the question was patent, and a proper one, and the direction given by the court meets it.

10. We are aware of the strict rulings in most of the decisions, that where the statements of the insured are incorporated into the contract of insurance, and are made the basis of it, they are held to be warranties: 6 Cush., 341; 1 Bigelow, 252; Ibid., 173; Ibid., 76; 1 C. & P., 360; 2 Comp. M., 348, and numerous others. In many of these it was held that the question of the materiality of the representations or misrepresentations was a matter that could not be set up by the insured or the beneficiaries in the policy, that when they amounted to warranties, the truth of them was the only question, and it could not be said that they were unimportant or immaterial so as to avoid the effect of their being untrue. We think the provisions of our Code determines this question. It is therein provided that “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:” Section 2802. The next section adds: “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.” Under these and the other provisions in the Code on this subject, we do not think that such representations as we are considering amount to warranties, so as that the policy will be vacated if any of them are untrue, whether material or not. But the proper construction is that if there be any variation in them from what is true, whereby the nature or extent or character of the risk is changed, the policy, if it makes them the basis of .the contract of assurance, will be void, and that this will be so whether they are or are not wilfully or fraudulently made.

Judgment reversed.