McClelland v. Northwestern Fire & Marine Ins. Co.
| Decision Date | 17 March 1955 |
| Docket Number | No. 1,No. 35478,35478,1 |
| Court | Georgia Court of Appeals |
| Parties | Ralph McCLELLAND v. NORTHWESTERN FIRE & MARINE INS. CO |
Syllabus by the Court.
1. Special ground 1 of the motion of new trial, complaining that the trial court erred in allowing an amendment to the defendant's answer, after the conclusion of the evidence, was not error for any reason assigned.
2. The remaining grounds of the motion for new trial, complaining of several excerpts from the charge of the court, are without merit for any reasons assigned, as shown in the opinion.
3. The evidence authorized the verdict for the defendant.
Ralph McClelland brought an action in the Civil Court of Fulton County against Northwestern Fire & Marine Insurance Company, for damages alleged to have been sustained to the plaintiff's automobile as the result of a windstorm. The defendant had written an insurance policy covering the plaintiff's automobile for damages to it resulting from 'windstorm.'
There was a stipulation of facts entered into between the parties, the pertinent parts of such stipulation being as follows: On February 22, 1953 the plaintiff's automobile, while parked in his carport, at about 7:10 p. m. rolled out of the carport and down the driveway toward the street, sideswiping one tree and crashing into another tree and doing $625.21 damage to the car. The plaintiff had parked the car in the carport at approximately 3:30 p. m. on this same day, and had gotten into the car at approximately 5:30 p. m. to use it, but it would not start and therefore the plaintiff did not move the car at that time. Later at approximately 6:45 or 7:00 p. m., on the same day, the plaintiff's oldest child had gotten into the car to get a toy, but the child did not in any way touch the mechanism of the automobile in getting the toy. It was further stipulated that a wind of between 18 to 21 miles per hour could vibrate and set a car such as the plaintiff's in motion. According to an exhibit, made a part of the stipulation of fact, the wind at the approximate time the car rolled down the driveway was blowing at 21 miles per hour at the Atlanta Municipal Airport. The wind velocity in the carport would be greater than that in the surrounding area, due to the topography of the surrounding terrain. According to another exhibit, made a part of the stipulation of facts, the floor of the carport had a grade of 3.5% in the direction that the car rolled, and the driveway which the car rolled down had grades of from 13.3% in some places to 21% in other places. The company admitted that the policy in force covered loss caused by windstorm, and that loss caused by windstorm shall not be deemed to be loss by collision. It was further stipulated that the question for the jury and for the court is whether, under the facts stipulated and others which the parties may present, the damages to the plaintiff's car were occasioned by windstorm within the meaning of the term as used in the policy, the meaning of which was not defined in the policy. The defendant in its answer denied that the cause of the damage to the plaintiff's automobile was 'windstorm.' On the trial of the case the stipulation of facts was read to the jury and later introduced into evidence without objection, as was the insurance policy. The plaintiff testified in his own behalf as to the wind on the day in question; that later he had, on more than one occasion, parked his car as it was parked on the day when the damage occurred, leaving the car's gears in neutral and the brakes disengaged; and that the car did not roll down the driveway. He further testified that he was without his automobile for 27 days while it was being repaired, and that the value of it was $5 per day, or a total of $135. After the evidence in the case had been presented, the defendant filed an amendment to its answer, over the objection of the plaintiff, in which it pointed out that the policy itself provides that the defendant shall not be liable for damages caused by mechanical failure unless the mechanical failure was caused by one of the perils covered by the policy; and then alleged that the cause of the automobile going down the driveway was either because the brakes on the automobile failed or the plaintiff had failed to set the brakes properly. After the judge charged the jury, they returned a verdict for the defendant. The plaintiff made a motion for new trial on the general grounds, which was later amended to include five special grounds. This motion was denied, and the plaintiff excepted.
J. Ralph McClelland, Jr., Atlanta, for plaintiff in error.
Troutman, Sams, Schroder & Lockerman, Dan MacDougald, Atlanta, for defendant in error.
1. After the conclusion of the evidence, the defendant tendered an amendment to its answer in which it was alleged in paragraph 1 that the policy provided that the defendant would not be liable for any damage caused by a mechanical failure unless the mechanical failure itself was caused by one or more of the perils covered by the policy, and then alleged in paragraph 2 that...
To continue reading
Request your trial
-
Black v. Miller
...62 Ga.App. 741, 745(1), 9 S.E.2d 683; Rome R. &c. Co. v. Keel, 3 Ga.App. 769, 771(2), 60 S.E. 468; McClelland v. Northwestern Fire, etc., Co., 91 Ga.App. 640, 642(1), 86 S.E.2d 729; George A. Fuller Constr. Co. v. Elliott, 92 Ga.App. 309, 88 S.E.2d 413; Southern R. Co. v. Elliott, 93 Ga.App......
-
Pendlebury v. Western Cas. & Sur. Co., 9618
... ... 29A Am.Jur. Insurance § 1698; American Eagle Fire Insurance Co. of New York v. McKinnon, 36 Ariz. 409, 286 P ... 343 at 348. See also Lewis v. Snake River Mut. Fire Ins". Co., 82 Idaho 329, 353 P.2d 648 (1960) ... \xC2" ... ...
-
Travelers Indem. Co. v. Wilkes County, 38394
...either by its own unaided action, or by projecting some object against it.' See in this connection McClelland v. Northwestern Fire etc. Ins. Co., 91 Ga.App. 640, 643, 86 S.E.2d 729. The evidence indicates that the roof of the Wilkes County courthouse was destroyed by fire on December 24, 19......
-
General Ins. Co. of America v. Davis
...of the word and the contract is converted into a mere 'wind' policy. See the special concurrence in McClelland v. Northwestern Fire &c. Co., 91 Ga.App. 640, 643, 86 S.E.2d 729. Assuming, for the sake of argument, that the damage was done because cool air entered the vents in the top of the ......