Canal Ins. Co. v. Tate, 40918
| Decision Date | 25 February 1965 |
| Docket Number | 3,2,No. 40918,Nos. 1,40918,s. 1 |
| Citation | 141 S.E.2d 851,111 Ga.App. 377 |
| Parties | CANAL INSURANCE COMPANY v. Wesley TATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
Where an issue arises as to the identity of the person against whom the plaintiff holds a judgment, the fact that the name of such judgment debtor and the name of the defendant's insured is idem sonans does not demand a finding that the two names refer to one and the same person, but this issue must be left for the jury's determination upon a consideration of all the evidence relating to identity, which is the true issue. In this case the court erred in directing a verdict for the plaintiff as to this issue.
Wesley Tate filed an action against Canal Insurance Company in the Superior Court of Richmond County, Ga., seeking to recover $10,000 plus 7% interest and costs upon an automobile liability policy alleged to have been issued by Canal Insurance Company to Robert Evans of Baldwin County, Ga., insuring his Plymouth automobile. The petition alleged that on January 25, 1960, Wesley Tate was a pedestrian on Georgia Highway #22 in Baldwin County, near the city limits of Milledgeville, on his way to work at approximately 6:30 a. m., at which time Robert Evans was driving his Plymouth automobile, which was insured by Canal Insurance Company, which struck and injured Wesley Tate. It was alleged that the original policy and all copies thereof are in the exclusive control and possession of Robert Evans and Canal Insurance Company and are not available to Wesley Tate and for that reason he was unable to attach a copy of the face of the policy to his petition; that Wesley Tate notified Canal Insurance Company, the insurer of Robert Evans, and also notified Robert Evans of plaintiff's injuries and they refused to make payment of his claim; that thereafter, Wesley Tate filed suit in Baldwin Superior Court against Robert Evans and that Canal Insurance Company was notified of the pendency of said suit but failed to take any action in the premises; that Tate, on April 11, 1961, recovered a verdict and judgment against Robert Evans for $10,000, and execution issued on that judgment and a nulla bona return was made thereupon by the sheriff; that plaintiff requested Canal Insurance Company to discharge said judgment according to its contract of insurance but Canal Insurance Company failed and refused to do so.
To this petition Canal Insurance Company filed its demurrer and answer. The demurrer generally attacked the petition because it failed to set forth any cause of action and specially attacked the petition, and particularly paragraphs 5 and 7 because neither a copy of the insurance policy nor that portion that appears upon the face or in the body of the policy was incorporated in the petition or attached thereto, and because neither the petition nor the separate paragraphs alleged that they contained that which appeared on the face of or in the body of the policy preceding the signatures of the officers who executed the policy, and on the further ground that the petition and said paragraphs did not allege sufficient reasons why a copy of the alleged policy or the portion thereof which appeared on the face of or in the body of the policy preceding the signatures of the officers was not attached to or incorporated in the petition, nor was there alleged any sufficient reason why such allegations were not made. The answer consisted of a denial of the substantial allegations of the petition.
The demurrer was argued and overruled and the case proceeded to trial and resulted in the direction of a verdict by the late Judge G. C. Anderson, Judge of Richmond Superior Court, in favor of the plaintiff, Wesley Tate, and against defendant, Canal Insurance Company, for $10,000 principal and 7% interest from April, 11, 1961, and judgment was rendered. Canal Insurance Company filed its motion for a new trial, had approved a brief of evidence in the case, and filed an amendment to its original motion for a new trial. The motion for a new trial was overruled and Canal Insurance Company sued out its bill of exceptions in which error is assigned upon the overruling of its demurrer to the petition, the direction of a verdict by the court in favor of plaintiff, Wesley Tate, against defendant, Canal Insurance company, and the overruling of its motion for a new trial as amended.
Fulcher, Fulcher, Hagler & Harper, E. D. Fulcher, Augusta, for plaintiff in error.
Randall Evans, Jr., Thomson, for defendant in error.
1. The exception to the overruling of the general demurrer has been abandoned.
2. The special demurrer attacks the failure of the plaintiff to attach a copy of the insurance contract to the petition. Code § 81-105 (Ga.L.1887, p. 64) provides, in part, that This requirement, however, is met when the contents or provisions of the contract are substantially set forth in the declaration or when the terms of the contract are set forth in the petition. Southern Land &c. Corp. v. Davis & Floyd Engineers, 109 Ga.App. 191, 198(3, a), 135 S.E.2d 454 and cases cited. In the case sub judice the relevant provisions of the contract are quoted in the petition, therefore the requirement of Code § 81-105 was met under the above rule.
A more compelling reason for overruling the demurrer is that the petition alleged that the insurance contract was in the exclusive control and possession of the insurer and the insured. 'Facts resting peculiarly within the knowledge of the opposite party may be alleged in general terms [cases cited].' Davis v. Homer Lumber Co., 211 Ga. 144(2), 84 S.E.2d 59; Farr v. McCook, 95 Ga.App. 749, 751(3), 98 S.E.2d 584; Fidelity & Deposit Co. of Maryland v. Fine, 56 Ga.App. 729, 736, 194 S.E. 58; Roadway Express, Inc. v. Jackson, 77 Ga.App. 341(4), 48 S.E.2d 691. In Glover v. Maddox, 98 Ga.App. 548, 557(2), 106 S.E.2d 288, it was held that, where a petition alleged that the plaintiff was not a party to the contract and the contract was in the defendant's possession, it was not necessary to attach a copy of the contract. The court did not err in overruling the special demurrer to the petition.
3. Ground 1 of the amended motion for a new trial complains of the admission of the following documentary evidence over the objection of movant. The documents included a copy of a suit instituted by the plaintiff in the case against Robert Evans in the Superior Court of Baldwin County, Ga., referred to in the petition; a purported copy of the judgment of the court in said case, which recited that a jury had returned a verdict in favor of Wesley Tate against Robert Evans for $10,000; a fieri facias in favor of the plaintiff against Robert Evans in said case; and a copy of the process issued in said case. All of the documents mentioned above, except process and return of personal services thereon, were certified to by the Clerk of the Superior Court of Baldwin County, Ga., without the clerk's seal. The exception to the above documents were: (a) That the policy of insurance issued by the defendant was issued, not to Robert Evans, but to Robert Evan, and that there was no showing that Robert Evans and Robert Evan were one and the same; (b) that the purported certified copy of the proceedings in the case referred to did not include any verdict as alleged in paragraph 11 of the petition; (c) that the execution does not show a nulla bona return as alleged in paragraph 12 of the petition; and (d) that the certificate as to the correctness of the petition, judgment and execution was insufficient in that there was no seal of the clerk executing the certificate.
The court did not err in admitting the foregoing described documents in evidence over the objections made. With respect to the first objection, it is sufficient to say that it was necessary in order for the plaintiff to recover in this action to prove first that he had obtained the judgment, and secondly, that this judgment was against the defendant's insured based on a cause of action covered by the policy. Obviously, he could not prove all facts upon which his right of recovery depended at one and the same time. Generally, the order in which evidence is to be introduced is within the discretion of the court. White v. Wallen, 17 Ga. 106(1). While, under certain circumstances, evidence as to one aspect of the plaintiff's case might not be admissible until the foundation therefor had been laid by the introduction of other evidence, this is not such a case, and it was proper for the trial court to allow the plaintiff to introduce this evidence, even though it might have been subject to a later objection and motion to strike on the ground of irrelevancy, if not properly connected with the defendant by a showing that the judgment was in fact obtained against its insured. See McCurdy v. Terry, 33 Ga. 49(1), and Webb v. Biggers, 71 Ga.App. 90, 91(2a), 30 S.E.2d 59. While the evidence objected to on the ground stated in (a) above, should, perhaps, have been admitted only conditionally, even though admitted in the first instance without qualification, it was, nevertheless, subject to later being excluded on motion unless properly connected up with the defendant. The evidence, as will be pointed out hereafter, was sufficient to authorize the jury to connect this evidence with the defendant, and no error in the admission of these documents over the objection stated in (a) appears.
The court did not err in admitting a certified copy of the record referred to because there was no verdict included. The certified copy of...
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