California Ins. Co. v. Blumburg, 38184
| Decision Date | 05 May 1960 |
| Docket Number | No. 38184,No. 2,38184,2 |
| Citation | 115 S.E.2d 266,101 Ga.App. 587 |
| Parties | CALIFORNIA INSURANCE COMPANY v. A. O. BLUMBURG et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where a witness for the defendant insurance company testified to having taken a written statement from a witness who testified for the plaintiffs, and to the signing of the statement by the plaintiffs' witness, and where the witness for the plaintiffs was shown the statement, and the time, place and circumstance of the taking of the statement was called to his attention, and where the statement, if believed by the jury to be true, tended to contradict the witness, such statement was admissible for the purpose of impeaching him, and the trial court erred in excluding it.
2. There being no issue in the case as to the meaning of obscurely written words in the policy of insurance, it was error for the trial judge to instruct the jury that they should construe the insurance contract against the company.
(a) The phrase 'regular and frequent trips' contained in a promissory warranty in the policy that the insured vehicles would not be operated on regular and frequent trips beyond certain designated radii from the city where they were principally garaged is not ambiguous so as to authorize the court to submit to the jury the meaning thereof.
(b) Rules of law relating to the construction of contracts as set forth in the Code are for the guidance and direction of the courts.
3. The evidence did not demand a verdict for the defendant.
Arthur O. Blumburg and others as partners, doing business as Southern Hardwood Lumber Company filed suit in the Civil Court of Fulton County against the California Insurance Company to recover an amount alleged to be due under a policy of collision insurance issued by the defendant to the plaintiffs and insuring the plaintiffs against loss and damage due to collision or upset of certain designated motor trucks owned by the plaintiffs. It was alleged and admitted that the defendant had issued the policy on or about April 28, 1958. It was further alleged that the plaintiff suffered a loss when two of its trucks overturned on the highway between Asheville, and Marion, North Carolina; that the units insured each consisted of a tractor and a trailer, and that the total damage to the trucks amounted to $16,450.53, for which amount they sued. The defendant denied liability, basing its defense on the contention that the policy sued on with respect to the coverage on the particular vehicles involved carried a limitation in which the plaintiffs warranted that no regular or frequent trips would be made by such vehicles during the policy period to any location, in the case of one of them, beyond a radius of 50 miles from the city limits of Atlanta, Georgia, where the vehicle was principally garaged, and, as to the other, beyond a radius of 150 miles from the city limits of Atlanta, and that the vehicles involved in the accident had been regularly and frequently operated during the policy period beyond their permissible radii of operation. The jury returned a verdict of $13,678.05 for the plaintiffs. The defendant made a motion for a judgment notwithstanding the verdict, and a motion for a new trial on the general grounds which it amended by the addition of two special grounds. the trial court denied those motions, and the exception here is to that judgment.
Smith, Field, Ringel, Martin & Carr, Sam F. Lowe, Jr., Atlanta, for plaintiff in error.
Haas, Holland & Zinkow, Richard C. Freeman, Atlanta, for defendant in error.
1. As will be seen from the statement of facts above, the policy sued on in this case was issued by the defendant on April 28, 1958. The loss occurred on May 13, 1958, exactly 15 days after the policy became effective. The defendant's contention with regard to the violation of the limitation on the radius of operations clause in the policy depended on proof that during the policy period the insured vehicles had made regular or frequent trips beyond their respective permitted radii of operation. The provision in the policy thus relied on was in the nature of a promissory warranty. Karp v. Fidelity-Phenix fire Ins. Co., 134 Pa.Super. 514, 4 A.2d 529. It is executory in character and in the nature of a condition subsequent. Scottish Union & National Ins. Co. v. Wade, 59 Tex.Civ.App. 631, 127 S.W. 1186.
In the first special ground of the motion for a new trial, complaint is made of the refusal of the court to admit in evidence the following written statement allegedly signed by the driver of one of the plaintiffs' vehicles, which statement was taken by one of the defendant's witnesses, an insurance adjuster, who had testified to the circumstances as to the time and place of the taking of the statement and to having witnessed the driver sign the statement: ...
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