Grain Dealers Mut. Ins. Co. v. White, 38607

• Decision Date: 07 March 1961
• Docket Number: No. 1,No. 38607,38607,1
• Citation: 119 S.E.2d 38,103 Ga.App. 260
• Parties: GRAIN DEALERS MUTUAL INSURANCE COMPANY v. J. B. WHITE, Jr
• Court: Georgia Court of Appeals

Page 38

119 S.E.2d 38

103 Ga.App. 260

GRAIN DEALERS MUTUAL INSURANCE COMPANY v. J. B. WHITE, Jr.

No. 38607.

Court of Appeals of Georgia, Division, No. 1.

March 7, 1961.

Syllabus by the Court

1. Where a defense set up as a special plea is also set up in the defendant's answer, and no objection is made to the answer, it is not harmful error to fail to strike the special plea.

2. It is not error to admit testimony over objection where the same evidence is admitted without objection.

3. The evidence authorized the verdict.

Grain Dealers Mutual Insurance Co. sued J. B. White, Jr., to recover a sum of money paid by it to satisfy a judgment against it and the defendant, attorneys' fees, and investigation costs paid in connection therewith, and an amount paid to settle a second lawsuit against them. The action was based on an endorsement attached to a policy of liability insurance issued by the plaintiff to the defendant under rule 35 of the Georgia Public Service Commission which requires such an endorsement to be attached to each policy of insurance issued to a 'common carrier' and binds the insurer to pay all judgments obtained against the 'common carrier' for bodily injury, death, or property damage resulting from the negligent operation, maintenance, or use of motor vehicles, under certificates of public convenience and necessity or permit issued to the insured by the Georgia Public Service Commission within the limits of the liability, regardless of whether such motor vehicle is specifically described in the policy or not. This rule further provides that the insured 'common carrier' shall reimburse the insurer for any payment made by the insurer on account of any claim, suit, etc., that the insurer would not have been obligated to make except for the terms of the endorsement to the policy. The motor vehicles, owned by the defendant and involved in the collision, was not one specifically covered by the policy and the plaintiff's liability, if any, arose out of the endorsement attached to the policy under the provisions of Rule 35, supra, of the Georgia Public Service Commission. In addition to answer the defendant filed a plea of estoppel in which he alleged that the defendant had paid the judgment in one lawsuit and settled the other lawsuit in direct contravention of his wishes and with direct knowledge that the defendant was not willing to participate in any such settlement or payment. Thereafter the plaintiff's motion to strike such plea was overruled and the case proceeded to trial with the jury trying the main case and the plea of estoppel together. At the conclusion of the evidence, the plaintiff made a motion for a directed verdict which was overruled and thereafter, after the jury returned a general verdict for the defendant, the plaintiff's motion for a judgment non obstante veredicto and for new trial were overruled. The plaintiff now assigns error on the judgments adverse to it.

Rogers, Magruder, Hoyt, Wright & Walther, Clinton, J. Morgan, Rome, for plaintiff in error.

Jere F. White, Cartersville, for defendant in error.

NICHOLS, Judge.

1. The defendant filed a special plea in which he alleged that the plaintiff took over the defense of the prior actions against his will and paid the judgment and settled the companion case against his wishes, and therefore the plaintiff should be estopped from recovering any sum from the defendant. The trial court overruled a motion to strike such plea and the plaintiff excepts.

It is unnecessary to decide if such judgment was error for if such judgment was error it was harmless to the plaintiff. The defendant had alleged in his answer that any payment made by the plaintiff was made against the wishes and desires of the defendant, and no objection appears to have been made to such part of the answer. The evidence in support of the special plea would have been admissible under the answer. See Day v. Case, 78 Ga. 58(1); Clark v. Bandy, 196 Ga. 546, 27 S.E.2d 17; Phillips v. Southern Ry. Co., 112 Ga. 197, 37 S.E. 418. Overstreet v W. T....