Fidelity & Cas. Co. of N. Y. v. Mangum
| Decision Date | 07 September 1960 |
| Docket Number | No. 1,No. 38356,38356,1 |
| Parties | FIDELITY & CASUALTY COMPANY OF NEW YORK v. B. B. MANGUM |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where evidence is objected to and a part of that objected to is admissible it is not error to admit all of such evidence.
2. Execution of a writing received through the mail may be proved by circumstantial evidence.
3, 4. The excerpts from the charge complained of in special grounds 3, 4 and 5 show no harmful error.
5. An excerpt from a charge giving the contentions of the parties as shown by their pleadings is not error.
6. The charge authorizing the jury to find 'bad faith' and 'attorney's fees' as provided for in certain cases by Code § 56-706 was not error.
7. It is not error to charge a correct principle of law because another correct principle was not charged.
8, 9. While the verdict was excessive the judgment overruling the motion for new trial is affirmed on condition that that part of the verdict which was unauthorized is written off.
Byron B. Mangum sued Fidelity & Casualty Company of New York on an insurance contract between the parties. The policy of insurance covered collision damage to the plaintiff's automobile less $50 deductible. The petition alleges that the plaintiff purchased a new 1958 Ford automobile on May 26, 1958, and on June 19, 1958, while it was properly parked it was struck by another automobile causing such damage that its market value was reduced by $1,436.76; that the defendant refused to pay such claim although the plaintiff properly reported the collision to the defendant and requested payment of his damages. The plaintiff's petition, as finally amended, prayed for judgment for $1,245 as the damage to the automobile plus interest from the date of the collision, plus attorney's fees and the statutory 'bad faith' penalty in a specified amount. The defendant in its answer admitted the existence of the contract, the collision, and liability in the amount of $246.38 but denied bad faith and alleged further that the plaintiff's automobile could be repaired by qualified mechanics for such $246.38. On the trial the jury returned a verdict for the plaintiff in the full amount sued for in his amended petition. The defendant's amended motion for new trial was overruled, and it is to such judgment adverse to it that the defendant now excepts.
Stevens & Stevens, Thomson, for plaintiff in error.
Randall Evans, Jr., Thomson, for defendant in error.
1. Special ground 1 of the defendant's amended motion for new trial complains of the admission of certain testimony of the plaintiff into evidence. The testimony shown in this special ground constitutes more than a page of 'briefed' evidence, some of which was admissible, and a part of this testimony was again brought to the attention of the jury by the defendant when it had the plaintiff on cross-examination. No harmful error is shown by this ground of the amended motion for new trial. See King v. Sharpe, 96 Ga.App. 71, 77 et. seq., 99 S.E.2d 283, and cases there cited.
2. Special ground 2 complains of the admission into evidence of a typewritten letter addressed to the plaintiff. Under the decision of the Supreme Court in Deaderick v. Deaderick, 182 Ga. 96(2), 185 S.E. 89, since proof of the execution of a writing such as that under consideration may be made by circumstantial evidence, it was not error to admit this evidence where there was evidence that the purported writer of the letter later talked to the plaintiff about such letter.
3. Special ground 3 complains of an excerpt from the charge dealing with the waiver of a proof of loss by the defendant and the penalty provided for by Code § 56-706. The defendant's answer admitted liability in a lesser amount than the plaintiff claimed. Therefore, the charge with reference to waiving a proof of loss was, if error, harmless, for the admission of some liability waived the technical requirements of a proof of loss. The remainder of the excerpt complained of which referred to a refusal of the defendant to 'settle' with the plaintiff within 60 days, rather than as contended by the defendant a refusal to 'pay' within 60 days, was not harmful since the only connotation which could have been put on the word 'settle' under the charge as given would have been 'pay.' For the same reason special ground 4 is without merit.
4. Special ground 5 complains of the instruction given the jury as to what facts and circumstances it should consider in deciding the case. Under the decision of this court in Sheridan v. Haggard, 95 Ga.App. 792, 99 S.E.2d 163, while the charge given may not have been technically correct, it was not harmful to the defendant.
5. Special ground 6 complains of an excerpt from the charge wherein the court was ostensively giving a narrative of the plaintiff's contentions as shown by the original petition. The court immediately after giving such contentions instructed the jury that it would have the pleadings out with it and that 'you may refer to them as often as you desire to find the issues and contentions.' It has been repeatedly held that such an instruction is not erroneous. See Limbert v. Bishop, 96 Ga.App. 652, 653, 101 S.E.2d 148, and citations.
6. Special ground 7 complains that the excerpts from the charge which authorized the jury to award attorney's fees and the penalty as provided by Code § 56-706 was error because there was no evidence to justify a finding of 'bad faith.' The defendant had offered the plaintiff less than 75cents on the dollar of the lowest estimate proved on the trial of the case and this estimate did not include certain repairs claimed to be necessary by the plaintiff and which the witness making the estimate did not include because he did not know whether they were necessary or not. Under the decision in Jackson v. Motors Insurance Corp., 97 Ga.App. 658, 104 S.E.2d 253, it cannot be said that the charge complained of was error for the reason assigned.
The further argument that such charge was error because the plaintiff did not prove that he had filed a 'proof of loss' is without merit where as here the defendant admitted liability under the contract which of necessity meant that any required 'proof of loss' was either filed or waived.
7. Special ground 8 complains that the trial court erred in charging the jury that it should find for the plaintiff in a lump sum when it should have charged the jury to find separately on each item for which recovery was sought. In other words it is...
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