General Assur. Corp. v. Roberts, 35622

• Decision Date: 26 October 1955
• Docket Number: No. 35622,No. 1,35622,1
• Citation: 92 Ga.App. 834,90 S.E.2d 70
• Parties: GENERAL ASSURANCE CORPORATION v. John ROBERTS, Executor
• Court: Georgia Court of Appeals

Page 70

90 S.E.2d 70

92 Ga.App. 834

GENERAL ASSURANCE CORPORATION v. John ROBERTS, Executor.

No. 35622.

Court of Appeals of Georgia, Division No. 1.

Oct. 26, 1955.

Syllabus by the Court.

1. The penalty allowable under Code, § 56-706 is a part of the 'amount involved' in actions in the Civil Court of Fulton County, and where the plaintiff sued for $297.50 as the amount allegedly due under the provisions of the insurance policy sued on, and for $73.38 as penalty, plus costs and attorney fees, the 'amount involved' exceeded $300 and the appeal of the case was properly made to this court rather than to the Appellate Division of the Civil Court of Fulton County.

2. The evidence demanded a finding that the applicant made a false representation in the application for insurance which was attached to the policy and that such misrepresentation was material to the risk involved, therefore a verdict was demanded for the defendant and the court erred in overruling the defendant's motion for a judgment notwithstanding the verdict.

Mrs. Rilla W. Wilson sued General Assurance Corporation in the Civil Court of Fulton County for proceeds payable under a policy of insurance. The plaintiff applied for a policy of hospitalization and surgical expense insurance and a policy was issued to her upon the payment of $42.50 in premiums, the policy becoming effective August 27, 1953. On September 15, 1953, the plaintiff was admitted to St. Joseph's Infirmary in Atlanta as a patient and was confined therein for a period of 32 days. On October 31, 1953, the plaintiff filed a claim with the defendant for $297.50 which she claimed was payable under the provisions of the policy. On November 18, 1953, the defendant refused payment of the claim and tendered to the plaintiff $42.50, representing the premium, and declared the policy null and void. The plaintiff refused the tender of the premium, and on February 15, 1954, instituted this action on the policy seeking $297.50 as the principal amount due, $73.38 penalty, $250 as attorney's fees and reasonable costs. The plaintiff died during the pendency of the action and her executor was made a party.

The defendant answered alleging that the policy was void because of a material misrepresentation contained in the application which was attached to the policy. At the close of the evidence the court directed a verdict for the defendant on the items of penalty and attorney's fees. The record does not disclose the circumstances surrounding the direction of the verdict on these items. The defendant's motion for a directed verdict on the remaining issue was overruled. The jury returned a verdict for the plaintiff in the amount of $297.50. The defendant moved for a judgment notwithstanding the verdict and for a new trial. These motions were overruled and the defendant excepts.

Dunaway & Embry, Robert E. Flournoy, Jr., Atlanta, for plaintiff in error.

James A. Bagwell, Atlanta, for defendant in error.

FELTON, Chief Judge.

1. The defendant in error moves for a dismissal of the writ of error on the ground that the amount involved in the action was less than $300, and that therefore the appeal should have been made to the Appellate Division of the Civil Court of Fulton County rather than to this court. The motion is without merit and is overruled. The defendant in error contends first that the penalty allowable by Code, § 56-706 is not part of the 'amount involved' in actions in the Civil Court of Fulton County, and secondly that in the instant case the question of penalty and attorney's fees allowable under Code, § 56-706 had been removed from the case and therefore the case became one involving only the amount claimed under the policy, i. e., $297.50. We do not agree with either contention. In National Life & Accident Ins. Co. v. Lain, 180 Ga. 463, 179 S.E. 120, and S.C., 51 Ga.App. 58(1), 179 S.E.751, the courts in effect held that the attorney's fees allowable under Code, § 56-706 are not part of the 'amount involved' because they were expressly excluded from the term 'amount involved' by Ga.L.1933, p. 290 et seq. That act excludes from the term 'amount involved' the items of interest, attorney's fees, and costs. It does not exclude the penalty allowable under Code, § 56-706; therefore, that item where sued for is considered as part of the amount involved in the suit. See also, Tate v. Industrial Life & Health Ins. Co., 58 Ga.App. 305, 306(1, 2), 198 S.E. 303. Pleadings alone determine the amount involved in a suit, Cox v. Dolvin Realty Co., 56 Ga.App. 649(1), 193 S.E. 467, and the amount involved, so far as the jurisdictional amount regulating the mode of appeal is concerned, cannot be affected by the testimony of witnesses or by the finding of a jury. Taylor v. Blasingame, 73, Ga. 111, 112(2); Bell v. Davis, 93 Ga. 233, 18 S.E. 647; Simmons v. Allen, 26 Ga.App. 725, 726, 106 S.E. 811. Nor can that amount be changed by the direction of a verdict. The amount involved in an action can only be changed by an actual amendment of the pleadings or by some action tantamount thereto. In Hamilton v. Davis, 79 Ga.App. 229, 53 S.E.2d 234, relied on by the defendant in error, the plaintiff reduced the amount sued for in open court before the case was tried, and the case was tried on the theory of the reduced amount. Such action on the part of the plaintiff there amounted to amending the pleadings, and a verdict, either directed by the court or returned by a jury, was governed thereby. However, in the instant case the pleadings were never amended and the direction of a verdict by the court did not have the effect of amending the petition. If the petition had been amended to eliminate the issue of penalty and attorney's fees, that issue would not have been before the court for the court to direct a verdict thereon. It would be inconsistent to say that the issue had been eliminated...