Nicholas v. Tanner

• Decision Date: 11 February 1903
• Citation: 43 S.E. 489,117 Ga. 223
• Parties: NICHOLAS v. TANNER.
• Court: Georgia Supreme Court

43 S.E. 489

117 Ga. 223

NICHOLAS v. TANNER.

Supreme Court of Georgia

February 11, 1903

Syllabus by the Court.

1. Where a second new trial is granted on a specified ground and expressly overruled on every other ground of the motion therefor, and the original bill of exceptions to this court assigns error only upon the grant of a new trial, no cross-bill of exceptions being taken to the action of the court upon those grounds of the motion which were overruled this court will pass only upon the question raised in the ground of the motion upon which a new trial was granted.

2. A plaintiff cannot recover damages for the consequences of negligence, which, by the exercise of that degree of care required of him by law, he could have avoided.

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by Ann Nicholas against G. H. Tanner. Verdict for plaintiff. From an order granting a new trial, plaintiff brings error. Affirmed.

Jno. T Pendleton and Jas. L. Key, for plaintiff in error.

Payne & Tye and J. A. Noyes, for defendant in error.

CANDLER J.

We take the following from the statement of facts embodied in the opinion filed by the learned and painstaking judge who tried this case in the court below: On March 22, 1897, certain property of Ann Nicholas was destroyed by fire. On July 6th she filed in the office of the clerk of the superior court a suit against the British America Assurance Company, based on a policy of insurance alleged to cover the property. One clause in the policy provided that "no suit or action on this policy, for the recovery of any claim, shall be sustained in any court of law or equity unless commenced within twelve months next after the fire." The next term of the superior court after the filing of the petition began on the first Monday in September, 1897. No process was attached to the declaration until October 1st, after the commencement of the term, when the clerk's deputy attached such process, requiring the defendant to appear at the spring term, 1898, which convened on the first Monday in March of that year; and service of the petition and this process was made on the defendant on October 4, 1897. Subsequently, on March 31, 1898, a motion to vacate the former service was made by counsel for the company. This motion came on to be heard on January 18, 1899, at which time an order was taken by plaintiff's counsel seeking to make the spring term of court, 1899, the return term, and directing process to issue and be attached, and service to be had. On demurrer at the spring term, 1899, the superior court dismissed the case; holding that what had been done did not amount to the commencement of a suit on the policy within one year from the date of the fire, and that the action was barred. This judgment was affirmed by the Supreme Court. Nicholas v. British America Assurance Co., 109 Ga. 621, 34 S.E. 1004. The plaintiff then brought a suit for damages against the clerk, based on his failure to attach process in the proper time. On the trial the defendant contended, among other things, that when the failure to attach process in the original case was discovered, after the term of court had begun, a deputy clerk called the attention of the attorney of the plaintiff to the fact, and asked direction from him, and that under his direction the process was annexed on October 1st, and service made. This was denied by the attorney, who testified that he never heard of any failure to attach process until more than a year after the date of the fire. On this subject there was a conflict in the evidence. On the trial the jury found for the plaintiff, this being the second verdict rendered in her favor. The defendant made a motion for a new trial, which was granted, upon the sole ground that the court should have charged, in effect, that if the jury believed that the plaintiff or her counsel had knowledge, within one year from the date of the fire, that the clerk failed to attach process to the petition against the insurance company, and serve the same, ordinary care required that she dismiss her suit and bring it over within the time provided by the contract of insurance, and failure to do this would prevent her from recovering from the clerk. The motion contained numerous other grounds, all of which the court expressly overruled, basing his decision squarely upon the reason just indicated. On the argument of the case in this court, counsel for the defendant in error sought to call in question the correctness of the ruling of the court below on all of the grounds of the motion, but as no cross-bill of exceptions was filed, and as there was no assignment of error by either party on the overruling of the remaining grounds of the motion, this court will not consider those grounds, but will confine itself to the single question whether or not the trial judge was correct in the conclusion of law declared by him in the opinion filed at the time of the rendition of the judgment granting a new trial.

The plaintiff in the court below contended that neither she nor her attorney knew anything about the failure of the clerk to attach process to her petition and serve the papers upon the defendant company until March 31, 1898, which was more than 12 months after the fire. This issue of fact was fairly submitted to the jury, and the court charged in this connection that it was the duty of the plaintiff, through her attorney, to use ordinary care to avoid the consequences to her of the defendant's negligence, and that if the plaintiff or her counsel, after discovering that the clerk had failed to attach process and serve the petition, could by the exercise of ordinary care, have avoided the consequences to the plaintiff of the clerk's negligence, the plaintiff could not recover. The defendant contended that the court should have charged that if the jury believed that the plaintiff or her attorney had knowledge, previous to the expiration of 12 months from the fire, of the failure of the clerk to attach process and make service, it was the duty of the plaintiff to dismiss her suit and bring it over; that if the plaintiff had such knowledge, and failed to take this step, the rule as to ordinary care was not applicable, this conduct on the part of the plaintiff's counsel being in itself a participation in the negligence...