New Zealand Ins. Co. v. Brewer
| Decision Date | 27 February 1923 |
| Docket Number | 13522. |
| Citation | 116 S.E. 922,29 Ga.App. 773 |
| Parties | NEW ZEALAND INS. CO. v. BREWER. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The provisions of the act of the General Assembly (Acts 1901, p 164, § 14) creating the city court of Sandersville, that "the judge of said city court shall have the power and authority to hear and determine without a jury all civil causes of which the said court has jurisdiction," where no written demand for a trial by jury is made by either party on or before the call of the docket, is not mandatory, but the judge of that court may submit a civil case to a jury although no demand for a trial by jury has been entered by either party under the terms of the act. Central Railroad v. Gleason, 69 Ga. 200 (3); Green v. State, 6 Ga.App. 324 (1), 64 S.E. 1121; Hardy v. Boyer, 7 Ga.App. 472 (2), 67 S.E. 205.
Bell v State Life Insurance Co., 24 Ga.App. 497 (5), 101 S.E 541.
(a) Applying this rule of construction, and referring especially to paragraph 5 of the petition, a cause of action was set forth as to the principal amount of the policy, which in the particulars here material was of the form of that involved in Harp v. Fireman's Fund Insurance Co., 130 Ga. 726 (1), 61 S.E. 704, 14 Ann.Cas. 299.
(b) The contention of the insurer that there was no allegation of compliance with the "iron safe" clause or of a reason for noncompliance (Jefferson Standard Fire Insurance Co. v. Brackin, 147 Ga. 47 [3], 92 S.E. 930) is without merit, in view of the general averments of paragraph 5 of the complaint.
Thompson v. Becham, 2 Ga.App. 84 (2), 58 S.E. 311. "They are not so verified when the answer is either silent with respect thereto, or expressly denies" them. Taft v. Smith, 112 Ga. 196 (1), 37 S.E. 424; Colbert v. State, 118 Ga. 302, 45 S.E. 403.
Since the presumptions are always in favor of the verdict and judgment, and the burden is upon him who alleges error to show it, uncertainties or ambiguities in the answer to the writ of certiorari as made by the trial judge must be construed, if it can be reasonably done, so as to sustain rather than to destroy the verdict and judgment.
(a) Applying the principles of this and the preceding paragraph, the judge's answer to the writ does not show that as to the principal and interest the verdict was subject to the assignment that it was without evidence sufficient to support it.
Where divisible items are sued for and recovered, a general assignment of error by the defendant that the verdict and judgment in favor of the plaintiff are contrary to law, because no cause of action was set forth in the suit, and because the verdict and judgment are unsupported by evidence, will only raise the question as to whether the petition alleged, or the proof sustained, a good cause of action as to any part of the plaintiff's demand. See, in this connection, Cohn v. Brown, 7 Ga.App. 395 (2), 66 S.E. 1038; Napier v. Union Cotton Mills, 93 Ga. 587, 20 S.E. 80; Harris County v. Brady, 115 Ga. 767 (2), 42 S.E. 71; Wilson v. Danforth, 47 Ga. 676 (3); Leavitt v. Port Wentworth Terminal Corp., 24 Ga.App. 650 (1), 101 S.E. 766. Hence the question as to the validity of the verdict and judgment for damages and attorney's fees is raised only by the last assignment (c), as mentioned in the statement of facts.
and can introduce no evidence to disprove them. They estop him so long as they stand. "The allegations and admissions of the complainant's [petition] are therefore evidence against him." Peacock v. Terry, 9 Ga. 137 (6), 150; Hampton v. Thomas, 11 Ga. 317, 320; East Tennessee, etc., Railway Co. v. Kane, 92 Ga. 187 (5), 18 S.E. 18, 22 L.R.A. 315; Kelly v. Strouse, 116 Ga. 872 (5), 43 S.E. 280.
(a) Accordingly where, although the averments of a complaint expressly negative the existence of a right which is claimed, a verdict is returned in favor of such claim, an assignment that the verdict is erroneous for being unsupported by evidence may be considered and sustained, although it appears that evidence so called was offered in accord with such averments. In such a case it would be impossible in law to establish such right by any evidence whatever, and the averments will not only exclude or supersede any evidence by which such a right is sought to be established, but the averments themselves as evidence for the defendant will demand a finding against such claim.
The ruling of the last preceding paragraph in no wise conflicts with the rule that an exception to the sufficiency of the evidence cannot be employed to test the sufficiency of the pleadings, a rule to be found in the following cases: Kelly v. Strouse, 116 Ga. 872 (6), 43 S.E. 280; Johnson v. Thrower, 123 Ga. 706 (2), 51 S.E. 636; Henley v. Brockman, 124 Ga. 1059 (2), 53 S.E. 672; Savannah Chemical Co. v. Bragg, 14 Ga.App. 373 (1), 80 S.E. 858; Guaranty Mut. Life & Health Ins. Co. v. Seals, 27 Ga.App. 378, 108 S.E. 477; Gunn v. Johnson, 29 Ga.App. 610, 116 S.E. 921. The rule last referred to will apply in instances of a failure to allege some fact which would be a necessary ingredient of the cause of action attempted to be declared, or a constituent of the right which is claimed, and possibly in others also which need not now be supposed, but would have no application whatever where the averments of the suit affirmatively negative the existence of such right, or show the impossibility of its existence under the suit as framed. In the latter case the averments by the complainant are to be treated as evidence deposited in the record in favor of his adversary. Besides the cases cited in the preceding paragraph, see, also, Civ. Code 1910, § 5775; Lydia Pinkham, etc., v. Gibbs, 108 Ga. 138 (1), 33 S.E. 945.
Under the provisions of section 2549 of the Civil Code of 1910, the liability of the insurer for attorney's fees and damages could not accrue until the lapse of 60 days from the date of a demand made when there was a right to demand, and since by the terms of the policy it was not payable until 60 days from the submission of proofs of loss, which were furnished on June 6, and since suit was filed on July 5, it was in law impossible, under the averments of the suit, for a legal demand for payment to have been made 60 days before the commencement of the action. It results that the averments not only failed to show a liability for attorney's fees and damages, but affirmatively negatived a liability therefor, and the verdict in favor of the plaintiff for these items was contrary to the evidence. Civ. Code 1910, § 2549; Lester v. Piedmont, etc., Ins. Co., 55 Ga. 476 (4); Ancient Order United Workmen v. Brown, 112 Ga. 545 (3), 37 S.E. 890.
(a) While "an absolute refusal to pay waives a compliance with these preliminaries" (Civ. Code 1910, § 2490; National Life Insurance Co. v. Jackson, 18 Ga.App. 494 [1], 89 S.E. 633; Williams v. Atlas Assurance Co., 22 Ga.App. 661 [1], 97 S.E. 91; Liverpool, etc., Insurance Co. v. Ellington, 94 Ga. 785 [2], 21 S.E. 1006), such a waiver can be availing only when pleaded ( McLeod v. Travelers' Insurance Co., 8 Ga.App. 765 [1], 70 S.E. 157; Fidelity & Casualty Co. v. Gate City National Bank, 97 Ga. 635 [4], 25 S.E. 392, 33 L.R.A. 821, 54 Am.St.Rep. 440), and where the plaintiff alleges his compliance with the terms of the policy, instead of a reason for a noncompliance, and proceeds to trial and verdict without amending (Liverpool, etc., Insurance Co. v. Ellington, supra), he is "shut into the case which he makes" (Hampton v. Thomas, supra); and although a demand is alleged to have been made more than 60 days before the filing of the suit, and it is alleged that the company "has refused to pay," these must be construed with the other averments (Gabbett v. City of Atlanta, 137 Ga. 180 [1], 183, 73 S.E. 372), which distinctly disclose that the action is founded, not on a waiver by the insurer, but upon a compliance by the assured with the provisions of the policy.
(b) Though the rule of construction announced in paragraph 2 has been applied to the action as for the principal of the policy, it cannot be applied to the allegations for attorney's fees and damages; for, viewing the suit as a whole, a construction which would uphold the suit as to these items could in no view be "in accordance with the natural intendment of the words and language of the pleadings." Athens Manufacturing Co. v. Rucker, supra, 80 Ga. 294, 4 S.E. 886. The same is to be said also of the application of the rule announced in paragraph 4 above.
(c) Under the theory of liability which...
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