Northern Assur. Co. of America v. Roll
| Decision Date | 01 November 1985 |
| Docket Number | 70667,Nos. 70652,s. 70652 |
| Citation | 176 Ga.App. 893,338 S.E.2d 870 |
| Parties | NORTHERN ASSURANCE COMPANY OF AMERICA v. ROLL et al.; and vice versa. ROLL v. NORTHERN ASSURANCE COMPANY OF AMERICA. |
| Court | Georgia Court of Appeals |
Sam F. Lowe, Jr., Sam F. Lowe III, Atlanta, for appellant.
Jeanette B. Burns, Robert L. Todd, J. Eugene Wilson, Furman Smith, Jr., Atlanta, for appellees.
Plaintiff Roll brought this action against defendant Northern Assurance Company of America to recover on a policy of fire insurance. Defendant denied liability and set up contractual defenses of arson and fraudulent overstatement of loss. Upon the conclusion of the trial, the jury returned a special verdict in favor of plaintiff and against defendant in the amount of $181,694.67. This sum consisted of loss and damage to personal property ($32,383) additional living expenses ($2,134.10), cost of repair of building ($100,000), bad faith damages ($20,177.51) and attorney fees ($27,000). Judgment was entered accordingly. Following the denial of defendant's motion for new trial and motion for judgment notwithstanding the verdict, defendant appealed, enumerating 18 errors. Held:
1. In its first enumeration of error, defendant asserts the trial court erred in failing to grant its motion for new trial and/or motion for judgment notwithstanding the verdict. In this regard, defendant argues that the evidence demonstrates the fire was set by plaintiff and that, therefore, plaintiff cannot recover upon the policy.
Although there was evidence that the fire was set, there was no direct evidence connecting plaintiff to the fire. Plaintiff was out of town when the fire occurred and he positively denied that he set or procured the fire. With this in mind, we consider the denial of defendant's motion for new trial and motion for judgment notwithstanding the verdict.
(a) Motion for new trial. "This court existing only for the correction of errors of law, and having no authority to determine the mere weight of the evidence, and the verdict for the plaintiff being fully authorized by testimony, the trial judge did not err in the exercise of his discretion in refusing a new trial." Payton v. Turner, 50 Ga.App. 519, 520, 179 S.E. 163. Accord Witt v. State, 157 Ga.App. 564, 565 (2), 278 S.E.2d 145.
(b) Motion for judgment notwithstanding the verdict. Bd. of Education, Richmond County v. Fredericks, 113 Ga.App. 199(2), 147 S.E.2d 789. See also Osborn v. Youmans, 219 Ga. 476, 134 S.E.2d 22. Since the evidence authorized the verdict in plaintiff's favor, the trial court properly denied defendant's motion for judgment notwithstanding the verdict. Maloy v. Planter's Warehouse, etc. Co., 142 Ga.App. 69, 72(2), 234 S.E.2d 807.
2. Defendant points out that ten days before the fire, plaintiff entered into a contract for the sale of the house for $82,000. Relying upon this fact, defendant contends the jury was bound by the contract price in assessing the value of the house. We disagree. While the sales contract constituted evidence of value, it was not the only evidence of value and it cannot be said that it was binding upon the jury. See Thompson v. Maslia, 127 Ga.App. 758, 763 (4), 195 S.E.2d 238. See also Sapp v. Howe, 79 Ga.App. 1, 2 (1), 52 S.E.2d 571. Enumerations of error 2, 3 and 4 are without merit.
3. The policy contained a replacement cost provision which provided that the cost to repair or replace plaintiff's property would not be paid by defendant until the actual repair or replacement was completed. In view of this provision, the trial court did not err in permitting plaintiff's expert, a construction consultant and remodeler, to testify concerning the cost to repair the house. Moreover, assuming the admission of such testimony was erroneous, no objection to the testimony was interposed by defendant. Thus, defendant's fifth enumeration of error is not meritorious. Carroll v. Johnson, 144 Ga.App. 750, 752 (3), 242 S.E.2d 296.
4. In its sixth enumeration of error defendant simply states that plaintiff "seeks to recover replacement costs" even though the policy requires actual repair or replacement. In so doing, defendant fails to call our attention to any error committed by the trial court with respect to the replacement cost issue. Thus, the sixth enumeration of error presents nothing for review. Kickasola v. Jim Wallace Oil Co., 144 Ga.App. 758, 760 (8), 242 S.E.2d 483. See generally MacDonald v. MacDonald, 156 Ga.App. 565, 275 S.E.2d 142.
5. The trial court did not err in excluding...
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