Atlanta Life Ins. Co v. Jackson, (No. 16228.)

• Decision Date: 17 November 1925
• Docket Number: (No. 16228.)
• Citation: 34 Ga.App. 555,130 S.E. 378
• Parties: ATLANTA LIFE INS. CO. v. JACKSON.
• Court: Georgia Court of Appeals

34 Ga.App. 555

130 S.E. 378

ATLANTA LIFE INS. CO.

v.JACKSON.

(No. 16228.)

Court of Appeals of Georgia

Division No. 2.

Nov. 17, 1925.

(Syllabus by Editorial Staff.)

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Action by Geneva Jackson against the Atlanta Life Insurance Company. Judgment for plaintiff and defendant brings error. Affirmed on condition.

Sam F. Garlington, of Augusta, for plaintiff in error.

John J. Jones and Callaway & Howard, all of Augusta, for defendant in error.

Syllabus Opinion by the Court.

BELL, J [l] 1, While the bill of exceptions alleges that certain exceptions pendente lite were duly tendered and certified, and describes them by stating the nature of the assignments made therein, there is no assignment of error in the final bill of exceptions either upon the exceptions pendente lite or upon the rulings therein excepted to. No question, therefore, is presented for decision under the exceptions pendente lite. Alexander v. Chipstead, 152 Ga. S51 (1), 111 S. E. 552; House v. American Discount Co., 31 Ga. App. 396 (1), 120 S. E. 701.

2. An assignment of error upon the admission of evidence must show, not only in what respects the evidence was objectionable, but that the objection was urged at the time of its admission. It is not sufficient in a ground of a motion for a new trial to state that the court erred in admitting certain evidence "over timely objection, " and then, after setting out the evidence admitted, to allege that the admission of the evidence was error for certain specified reasons,, where it is not further alleged in the motion that the evidence was objected to for such reasons at the time of its admission. Henslee v. Harper, 148 Ga. 621 (1), ' 97 S. E. 667; Pelham & Havana R. Co. v. Walker, 27 Ga. App. 398 (2), 108 S. E. 814.

3. "A plaintiff must recover upon the cause of action as laid in the petition; and a verdict in his favor is illegal when the evidence fails to support the cause declared on, even though a different cause of action may appear from testimony admitted without objection. But evidence, admitted without objection, which supports what is in fact the same cause of action, although it might have been excluded on objection, may be sufficient to authorize a recovery, if, under the facts of the case, the petition could by amendment have been so conformed to the proof as to render such testimony relevant." Napier v. Strong, 19 Ga. App. 401 (2), 91 S. E. 579. Under this rule there was no fatal variance between the allegata and probata in this case.

4. The evidence did...