Globe & Rutgers Fire Insurance v. Smyly , 155 Ga. 547 ( 1923 )

Gilbert, J.

The dissenting opinion of Judge Bloodworth in the case as decided by the Court of Appeals, 28 Ga. App. 776, in our opinion, is the correct view of the case, and states the evidence, in the case and the law applicable thereto so clearly ánd convincingly that it is quoted with approval, without further comment, as follows: “ In Anderson v. Anderson, 27 Ga. App. 513, 515 (6) (108 S. E. 907), it was held: ‘Unless such a decision is wholly without evidence to support it, or the result of an erroneous view of the law, this court is powerless to interfere. Civil Code (1910), §§ 5368, 6502, 6103; High Co. v. Adams Co., 5 Ga. App. 863 (63 S. E. 1125); Hixon v. Calloway, 5 Ga. App. 416 (2) (63 S. E. 518). In the opinion of the writer, the judgment in this case was not the result of an erroneous view of the law; there- is some evidence to support it, and the motion for a new trial was properly overruled. In the face of the policy sued on, and under the word ‘ warranties/ it is stipulated that ‘ The following are statements of fact known to and warranted by the assured to be true, and this policy is issued by the company relying upon the truth thereof/ (Then follow warranties 1 and 2, which are not material to the issues under consideration.) In warranty No. 3, it is stated that ‘ The automobile described is fully paid for by the assured, and is not mortgaged or otherwise encumbered, except as follows: No exceptions/ The record shows that the statement in the policy that the automobile is unincumbered is not true. In the agreed statement of facts which was submitted to the judge, who, without the intervention of a jury, tried the ease, it is shown that prior to the time the policy was written the insured had given a mortgage to the bank, ‘to secure the payment of six notes for the sum of $63.00 each made by him to the bank/ The writer thinks that the ‘ warranty ’ that there was no mortgage on the automobile at the time the policy was written was a material one. The policy states that the insurance was issued ‘ relying upon the truth5 of the warranties and ‘ in consideration of the warranties and the premium hereinafter mentioned/ Section 2480 of the Civil Code of 1910 is in part as follows: ‘ Any verbal or written representations of fact by the assured to induce acceptance of the risk, if material, must be true, or the policy is void/ The contract of insurance must be considered in connection with this section of the code, which becomes a part of the contract. Under the express words of the policy the company acted upon these ’warranties,’ and this warranty being both untrue and material, the policy is void. See Civil Code (1910), §§ 2479, 2481, 2483; Supreme Conclave Knights of Damon v. Wood, 120 Ga. 328 (47 S. E. 940); Northwestern Life Ins. Co. v. Montgomery, 116 Ga. 799 (2) (43 S. E. 799); Johnson v. Pacific Fire Ins. Co., 19 Ga. App. 675 (91 S. E. 1067).”

Accordingly the Court of Appeals should have affirmed the judgment excepted to in the main bill of exceptions and dismissed the cross bill of exceptions.

Judgment reversed.

All the Justices concur.