Old Colony Ins. Co. v. Dressel, 40612
| Citation | 136 S.E.2d 525,109 Ga.App. 465 |
| Decision Date | 13 March 1964 |
| Docket Number | No. 40612,No. 2,40612,2 |
| Parties | OLD COLONY INSURANCE COMPANY v. W. M. DRESSEL et al |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court
1. The overruling of a special demurrer to pleadings does not constitute reversible error when after the verdict and final judgment it does not appear that this handicapped a party in preparing for trial or otherwise prejudiced him.
2. When a reasonable mind might accept the circumstantial evidence presented as adequate to support a finding in favor of one of the parties on an issue of fact, a verdict based on such finding is authorized even though the evidence might also reasonably support a finding in favor of the other party on this issue of fact.
3. When the evidence at the trial would have authorized a finding in accordance with the contentions of the defendant's answer, and the plaintiff fails to show that the defendant's refusal to pay an insurance claim was frivolous and unfounded on the basis of facts appearing to the insurer at the time of the refusal an award of penalty and attorney's fees for bad faith on the part of the insurer is not authorized.
In an action on an insurance contract to recover for the loss of his horse allegedly resulting from windstorm, the plaintiff was awarded a verdict and judgment of $1,000 plus penalty of $250 and attorney's fees of $250. The defendant assigns error on the overruling before the trial of a special demurrer to the plaintiff's petition, and on the overruling of its motions for judgment notwithstanding the verdict and for a new trial.
Fulcher, Fulcher, Hagler & Harper, Augusta, for plaintiff in error.
R. William Barton, George L. Dawson, Augusta, for defendant in error.
1. In response to the defendant's special demurrer the trial court might properly have required the plaintiff to plead more facts accompanying the horse's death, but even if the failure to do so was error, it does not appear from the record and argument in this case that the defendant was handicapped in preparing its defense or otherwise prejudiced by the overruling of the demurrer. The evidence showed that the plaintiff contacted the defendant's agent promptly after the horse was killed, and thereafter the defendant's agent called on the plaintiff at his house and had a talk with him, and the insurer refused payment, as recalled by the plaintiff, within a month. The plaintiff in error has the burden to show not only error, but that the error was prejudicial. First National Bank of Chattanooga v. American Sugar Refining Co., 120 Ga. 717, 48 S.E. 326; Gaulding v. Courts, 90 Ga.App. 472, 476, 83 S.E.2d 288; Carpenter v. Forshee, 103 Ga.App. 758, 770, 120 S.E.2d 786; Lam Amusement Co. v. Waddell, 105 Ga.App. 1, 4, 123 S.E.2d 310; Grier v. Donner, 108 Ga.App. 546, 547, 134 S.E.2d 46; Studdard v. Evans, 108 Ga.App. 819, 825, 135 S.E.2d 60.
Today our pleading rules are implemented by deposition and pre-trial discovery procedures to aid in the preparation for trial and reduce the possibility of surprise. Reynolds v. Reynolds, 217 Ga. 234, 246-247, 123 S.E.2d 115. Code Ann § 38-2101 is far more effective than a special demurrer in assisting a defendant in the preparation of his defense for the reason that the deponent must disclose not only relevant evidence but that which '* * * appears reasonably calculated to lead to the discovery of admissible evidence.' Setzers Super Stores of Georgia, Inc. v. Higgins, 104 Ga.App. 116, 120, 121 S.E.2d 305. If the defendant, prior to the trial, obtained by these discovery procedures or other means the information sought by the special demurrer, the overruling of the special demurrer would be harmless error. Glover v. Maddox, 98 Ga.App. 548(2), 106 S.E.2d 288; Aycock v. Williams, 185 Ga. 585, 589, 196 S.E. 54. This case was tried upon the merits and, nothing appearing in the record to show that the defendant did not actually obtain the information sought by the special demurrer before trial, it cannot be said as a matter of law that the defendant was prejudiced in preparing its defense, thus the overruling of the special demurrer was not reversible error. Whitner v. Whitner, 207 Ga. 97, 99, 60 S.E.2d 464; Jacobs v. Rittenbaum, 193 Ga. 838(4), 20 S.E.2d 425.
Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98, 70 S.E.2d 734; and Brinson v. Kramer, 72 Ga.App. 63, 33 S.E.2d 41, upon which the defendant relies, are distinguishable for the reason that in those cases the appellate courts reviewed rulings on demurrers prior to trial and verdict. The opinion in Kemp v. Central of Georgia Ry. Co., 122 Ga. 559, 50 S.E. 465, is distinguishable for the reason that there a nonsuit had been erroneously granted against the plaintiff, making a re-trial necessary.
2. The plaintiff testified: He had observed in the evening that all of the tin was on the roof of his barn; a 'devil duster of twister,' like a small cyclone or tornado, came up during the night and the plaintiff's wife got up and closed the windows; the next morning one of the plaintiff's colts was lying next to the fence with a piece of 'the tin' laying against it, and its neck was broken. The plaintiff described the 'devil duster' as audible, 'a force,' not just an ordinary breeze but a windstorm, that stirs up dirt and sand. Six hundred feet from his barn he had a sand pit covering 12 to 15 acres, and he got a lot of dust and sand from it.
A horse trainer testified that he had seen a devil duster at the plaintiff's place and that such storms or anything that comes up unexpectedly, frightened the horses; when they get excited, especially when a wind storm or rain or hail comes up, the horses will come running to the barn and will sometimes run through the fence.
A meteorologist technician testified that records of tests made at the airport (about 10 miles from the plaintiff's property) on the night in question showed that before midnight the wind velocity was low; and between 12:30 and 5 a. m. there was no wind and no clouds; there was a fog. In his opinion based on these records there could have been no wind storm that night in a radius of 8 or 10 miles of the airport. There could have been a smaller type wind storm (other than a thunder...
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