Jackson National Life Insurance v. Snead , 231 Ga. App. 406 ( 1998 )

Smith, Judge,

dissenting.

I agree that the trial court’s order granting a new trial was valid. I also agree that the trial court did not abuse its discretion in granting Snead a new trial after a defendant’s verdict in the first trial of this case or in denying Jackson National a new trial after the verdict for Snead in the second trial. The evidence on the central issues of misrepresentation and materiality was conflicting and disputed, and a directed verdict in favor of Jackson National was not demanded by the evidence. The trial court therefore did not err in denying Jackson National’s motion for a directed verdict on either ground. But I cannot agree that the trial court correctly charged the jury; the instruction on the legal principles' of ambiguity in the second trial was harmful error.

At the second trial, the trial court gave a lengthy charge to the jury on the construction of ambiguous terms in insurance contracts.⁵ The trial court charged the jury in the language of plaintiff’s Request to Charge No. 14, that “contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary and popular sense. If an insurance policy is ambiguous or uncertain, the ambiguity or uncertainty is to be resolved against the insurer.” Jackson National argues that this charge was inapplicable in a misrepresentation case and therefore was irrelevant and confusing. In my opinion, this conclusion is correct.

“When an error in the charge of the court is shown to exist, it is presumed to be prejudicial and harmful, and this court will so hold unless it appears from the entire record that the error is harmless. . . . Harmful error results when an inapplicable instruction might reasonably draw the jury away from the true issues in dispute or if the erroneous instruction is inapplicable to a vital issue in the case.” (Citations and punctuation omitted.) Hopkins v. First Union Bank &c., 193 Ga. App. 109, 112 (387 SE2d 144) (1989).

I would find that the trial court’s charge constituted reversible error because the two virtually identical questions in the insurance application seeking information about Janice Snead’s smoking habits were unambiguous, the first asking whether she “smoked cigarettes within the last 12 months,” and the second asking whether she “smoked cigarettes in past twelve months.” Janice Snead was asked whether she had smoked cigarettes within the last 12 months, and that was the central issue before the jury for determination. The application terms themselves were not at issue, only whether the facts showed that Janice Snead was smoking cigarettes in the year preceding her application. Because no genuine issue existed as to the meaning of the word “cigarettes” in this case, this word being neither obscurely written nor ambiguous, the court’s charge to construe the contract in favor of the insured was clearly erroneous. This is particularly so since it appears the trial court believed that Janice Snead’s subjective understanding of the meaning of terms in the insurance application was relevant.

Under the facts of this case, this error cannot be deemed harmless. “A charge which injects into the case and submits for the jury’s consideration issues not made by the pleadings or the evidence tends to confuse the jury as to the true issue in the case, is probably harmful to appellant, and is error requiring the grant of a new trial.” (Citation and punctuation omitted.) McCoy v. Alvista Care Home, 194 Ga. App. 599, 601 (391 SE2d 419) (1990). It is noteworthy that, on essentially the same evidence, the jury in the second trial was given this charge and reached the opposite verdict from the first jury, which did not receive an instruction on ambiguity. It is also noteworthy that the jurors in the second trial asked to hear this new portion of the charge a second time, indicating possible confusion on their part as well as emphasizing the importance of this language in their deliberations.

The trial court also erred in allowing into evidence Snead’s testimony describing how Janice Snead died because such evidence was immaterial to the issues presented under OCGA § 33-24-7 (b) and patently prejudicial to Jackson National. “ Any evidence is relevant which logically tends to prove or disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant. (Cit.) Moreover, where the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to the determination of the jury. (Cits.)’ [Cits.]” Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 338 (3) (c) (319 SE2d 470) (1984). But it is also true that “ ‘[a]dmission of evidence which is both irrelevant and prejudicial is harmful error. (Cits.)’. . . [Cit.]” (Emphasis omitted.) Thomason v. Harper, 162 Ga. App. 441, 442 (289 SE2d 773) (1982).

In order to recover against Jackson National, Snead had the burden of showing: (1) a life insurance policy was issued by Jackson National on the life of Janice Snead; (2) a premium was paid; (3) Janice Snead died; (4) a claim was made for the policy proceeds; and (5) Jackson National refused to pay. The parties stipulated that Janice Snead died on April 24, 1992. It is immaterial that an insured “died from an unrelated cause concerning which there was no misrepresentation.” Hopkins v. Life Ins. Co. of Ga., 218 Ga. App. 591, 593 (462 SE2d 467) (1995). The trial court charged the jury that the cause of the insured’s death was not relevant to the issue of materiality under OCGA § 33-24-7 (b). Under these circumstances, the manner of Janice Snead’s death was irrelevant to show any disputed issue at trial.

Decided March 20, 1998 Nations, Yates & Toman, J. Comer Yates, Gary J. Toman, for appellant. Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, John R. Bevis, for appellee.

The trial court was aware of the potential for prejudice and took some action to limit testimony regarding the manner of Janice Snead’s accidental death. Snead nevertheless testified in considerable detail to the circumstances of the accident, his discovery of Janice Snead in an injured state and his attempts to free her from her trapped position.

This testimony was wholly irrelevant to any disputed issue in the case, and its potential for prejudice or sympathy is suggested by the notation in the transcript that a recess was taken because a juror began to cry during this testimony. Snead’s expressed concern that the jury would otherwise have speculated regarding the cause of Janice Snead’s death could have been addressed by an instruction or stipulation that her death was an accidental drowning and unrelated to any issue on trial, or by testimony to that effect.

For these reasons, I respectfully dissent.

I am authorized to state that Chief Judge Andrews and Presiding Judge Birdsong join in this dissent.

5 The charge on ambiguity was not given at the first trial. This charge also was given to the jury a second time during deliberations at the request of the jury.