Am. Ins. Co v. Musgrove

Decision Date06 July 1909
Docket Number(No. 1,843.)
CourtGeorgia Court of Appeals
PartiesAMERICAN INS. CO. v. BAILEY & MUSGROVE.
1. New Trial (§ 18*)—Grounds—Overruling Demurrer.

It is not proper to assign error upon the overruling of a demurrer to a petition as one of the grounds of a motion for a new trial.

[Ed. Note.—For other cases, see New Trial, Cent. Dig. § 27; Dec. Dig. § 18.*]

2. Witnesses (§ 16*) — Notice to Produce Documents—Continuance.

Where one of the parties to an action is notified by his opponent to produce documents to be used in evidence, and the notice requires the production at a designated term, but at that term the case is continued, a response to the notice may be required at the subsequent term.

[Ed. Note.—For other cases, see Witnesses, Dec. Dig. § 16.*]

3. Continuance (§ 30*)—Surprise—Discretion of Court.

Motions to continue on the ground of surprise on account of amendments filed are addressed to the sound discretion of the court. There was no abuse of discretion in the present case. Ga., Fla. & Ala. Ry. Co. v. Sasser, 4 Ga. App. 276, 61 S. E. 505 (2).

[Ed. Note.—For other cases, see Continuance, Cent. Dig. § 99; Dec. Dig. § 30.*]

4. New Trial (§ 35*) — Grounds Ruling Good in Part.

Grounds of a motion for a new trial, complaining of the court's refusal to exclude testimony, are properly overruled, if the objection is to the testimony in bulk and any paut of it is admissible.

[Ed. Note.—For other cases, see New Trial, Dec. Dig. § 35.*]

5. Insurance (§ 675*)—Action on Policy-Attorney's Fees.

Attorney's fees may be recovered in an action on an insurance policy, if the company's refusal to pay was in bad faith. Missouri Ins. Co. v. Lovelace, 1 Ga. App. 466. 58 S. E. 93; Harp v. Firemen's Ins. Co., 130 Ga. 726, 61 5. E. 704.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1806; Dec. Dig. § 675.*]

6. Trial (§§ 251, 252*)—Instructions—Defenses Not Made by Pleadings—Defenses Not Supported by Evidence.

Error cannot be successfully assigned upon the court's failure to submit to the jury instructions as to defenses not made by the pleadings; and the same is true as to defenses which, though pleaded, are so wholly unsupported by the testimony as to demand a finding against them. The court fully and fairly submitted to the jury all defenses made by the pleadings and supported by any testimony.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 587-612; Dec. Dig. §§ 251, 252.*]

7. Insurance (§ 669*)—Action on Policy-Damages for "Bad Faith."

There was no error in charging the jury, in an action on an insurance policy, as follows: "Damages and attorney's fees cannot be recovered, unless you find from the evidence thatthe insurance company has acted in bad faith. 'Bad faith' means a frivolous or unfounded refusal in law or in fact to comply with the requisites of the policy, to pay according to the terms of the policy and the conditions imposed by the statutes." Cotton States Life Ins. Co. v. Edwards, 74 Ga. 221; Missouri Ins. Co. v. Lovelace, 1 Ga. App. 466, 58 S. E. 93; Traders' Ins. Co. v. Mann, 118 Ga. 381, 385, 45 S. E. 426.

[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 669.*

For other definitions, see Words and Phrases, vol. 1, p. 662.]

8. Sufficiency of Evidence.

The evidence amply supported the verdict, and the trial was free from material error. (Syllabus by the Court.)

Error from City Court of Miller County; W. I. Geer, Judge pro hac.

Action by Bailey & Musgrove against the American Insurance Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

P. D. Rich, Burton Smith, and Lawton Nalley, for plaintiff in error.

J. R. Pottle and R. W. Grow, for defendants in error.

POWELL, J. Judgment affirmed.

*.For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexas

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5 cases
  • Cowan v. Baconton
    • United States
    • Georgia Court of Appeals
    • January 22, 1918
    ...not submit to the jury a defense which he did not plead, Faulkner v. Faulkner, 84 Ga. 73, 10 S. E. 504 (3); American Ins. Co. v. Bailey & Mus-grove, 6 Ga. App. 424, 65 S. E. 160(6); Chattahoochee Valley Railway Co. v. Bass, 9 Ga. App. 83, 70 S. E. 683(12). The court fully and fairly submitt......
  • Scott v. Scott
    • United States
    • Georgia Court of Appeals
    • April 8, 1935
    ...Luke v. State, 26 Ga. App. 175, 106 S. E. 199; City of Atlanta v. Sciple, 19 Ga. App. 694, 92 S. E. 28; American Insurance Co. v. Bailey & Musgrove, 6 Ga. App. 424, 65 S. E. 160. 2. The assignments of error not dealt with above are plainly without merit. 3. The question of title was fairly ......
  • Cowan v. Bank of Baconton
    • United States
    • Georgia Court of Appeals
    • January 22, 1918
    ... ... did not plead, Faulkner v. Faulkner, 84 Ga. 73, 10 ... S.E. 504 (3); American Ins. Co. v. Bailey & Musgrove, 6 ... Ga.App. 424, 65 S.E. 160(6); Chattahoochee Valley ... Railway Co. v. Bass, 9 Ga.App. 83, 70 S.E. 683(12). The ... ...
  • Scott v. Scott
    • United States
    • Georgia Court of Appeals
    • April 8, 1935
    ...Luke v. State, 26 Ga.App. 175, 106 S.E. 199; City of Atlanta v. Sciple, 19 Ga.App. 694, 92 S.E. 28; American Insurance Co. v. Bailey & Musgrove, 6 Ga.App. 424, 65 S.E. 160. 2. assignments of error not dealt with above are plainly without merit. 3. The question of title was fairly submitted ......
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