American Cas. Co. v. State Farm Mut. Auto. Ins. Co., s. 38980

• Decision Date: 07 September 1961
• Docket Number: 38981,No. 3,Nos. 38980,s. 38980,3
• Citation: 121 S.E.2d 806,104 Ga.App. 337
• Parties: AMERICAN CASUALTY COMPANY. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. v. AMERICAN CASUALTY COMPANY
• Court: Georgia Court of Appeals

Page 806

121 S.E.2d 806

104 Ga.App. 337

AMERICAN CASUALTY COMPANY. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. v. AMERICAN CASUALTY COMPANY

Nos. 38980, 38981.

Court of Appeals of Georgia, Division No. 3.

Sept. 7, 1961.

Syllabus by the Court

1. Where the evidence is conflicting, that view of it will be taken which is most favorable to the prevailing party.

2. Though evidence may have been admitted that was objectionable, if other similar evidence is admitted without objection the illegal admission is not a basis for the granting of a new trial.

R. C. Pierce and H. R. Beale Roofing Co., Inc. carried two public liability policies on its motor vehicles with State Farm Mutual Insurance Company and decided to cancel that coverage and place it with American Casualty Co. Request for cancellation was made to the agent of State Farm, pursuant to which one of the policies was canceled as of June 14, 1957, and the other as of June 24, 1957. American Casualty Co. issued its policy, first effective June 24, 1957, and then endorsed to be effective from June 16, 1957. On June 21, 1957, one of the insured vehicles collided with the vehicle of another party and caused the occupants thereof to be injured. It developed that the vehicle so involved was listed as one of those covered in the policy of State Farm that was canceled as of June 24, so that apparently coverage was afforded thereon at the time of the collision both by it and by American Casualty.

The request for cancellation of both policies with State Farm had been made by the insured at the same time, and the agent of State Farm reported to the company that there had been a typographical error in the effective date, as contained in the request that he had prepared and forwarded, and accordingly State Farm issued a correcting cancellation and a check for the additional unearned premium and forwarded it to the insured, with a letter of explanation.

American Casualty, without the consent of and participation of State Farm, proceeded to effect a settlement with the injured parties, some of whom were minors, without any court proceedings in connection therewith, and thereafter made demand upon State Farm that it contribute proportionately for the amount of its coverage. State Farm declined to make contribution, and American Casualty sued in the Civil Court of Fulton County. State Farm demurred, both generally and specially to the petition, and after the overruling thereof the case proceeded to trial before the judge without a jury. After hearing the evidence judgment was entered for the defendant, State Farm. American Casualty filed its motion for new trial, which was later amended, and upon the overruling thereof brought the cause here for review. State Farm seeks a review of the rulings on demurrer by way of cross bill of exceptions.

Smith, Field, Ringel, Martin & Carr, Sam F. Lowe, Jr., Robert C. Field, Atlanta, for plaintiff in error.

Powell, Goldstein, Frazer & Murphy, Edward E. Dorsey, C. B. Rogers, Atlanta, for defendant in error.

EBERHARDT, Judge.

The only assignment of error in the main bill of exceptions is as to the overruling of the motion for new trial as amended. The...