Pearl Assur. Co. v. Nichols
| Decision Date | 31 January 1946 |
| Docket Number | 31082. |
| Citation | 37 S.E.2d 227,73 Ga.App. 452 |
| Parties | PEARL ASSURANCE CO., Limited, v. NICHOLS. |
| Court | Georgia Court of Appeals |
Rehearing Denied Feb. 8, 1946.
SYLLABUS BY THE COURT.
1. It is never error to refuse to direct a verdict.
2. There was no error in admitting in evidence the letter from the plaintiff to the attorneys for the defendant.
(a) An objection to evidence as being immaterial and irrelevant without more, is not sufficient.
(b) A duplicate carbon copy of an original writing, made by the same stroke of the typewriter, is not secondary evidence and inadmissible as such.
(c) An objection to evidence as a self-serving declaration shows no error where other evidence of a similar nature is introduced without objection.
(d) An objection to evidence as prejudicial on the question of defendant's good faith becomes immaterial where damages and attorneys' fees are written off.
3. There was no error in refusing the charges requested.
4. Objections to a portion of the charge relating to damages and attorneys' fees are immaterial where such damages and attorneys' fees are written off.
5. The evidence failed to show bad faith of the defendant and failed to sustain the verdict for damages and attorneys' fees; but was sufficient to authorize the verdict for the face amount of the policy. The judgment is affirmed on condition that the plaintiff write off the amounts found as damages and as attorneys' fees, otherwise the judgment is reversed and a new trial granted.
Smith Partridge, Field & Doremus, of Atlanta, for plaintiff in error.
Geo. & John L. Westmoreland, of Atlanta, for defendant in error.
This is an action brought by Charles D. Nichols against Pearl Assurance Co., Ltd., on a fire insurance policy in the sum of $3,000. The case was tried and resulted in a verdict for the plaintiff for the face amount of the policy and $750 damages and $750 attorneys' fees. A motion for new trial filed by the insurance company was overruled, and the exception here is to that judgment. Another case between the same parties arising out of the same fire, but based on a different contract, has been before this court. See Nichols v. Pearl Assurance Co., Ltd., 71 Ga.App. 378, 31 S.E.2d 127.
1. The assignment of error that the judge refused to direct a verdict for the defendant is without merit. Although the trial court may direct the jury to find for the party entitled thereto, under the circumstances stated in the Code, § 110-104, it is never error to refuse to direct a verdict. Roper Wholesale Grocery Co. v. Faver, 8 Ga.App. 178(1), 68 S.E. 883; Dundee Wollen Mills v. Edison, 17 Ga.App. 245(2), 86 S.E. 414; Heller v. Samuel Silver, Inc., 30 Ga.App. 488(7), 118 S.E.
449; Sovereign Camp, W. O. W. v. Batchelor, 52 Ga.App. 262(1), 183 S.E. 131; Coastal News Co. v. Jacksonville Paper Co., 66 Ga.App. 227, 228(1), 17 S.E.2d 760.
2. The motion for new trial complains of the introduction in evidence of a letter written by the plaintiff to the attorneys for the defendant. The objections to the letter were that it was immaterial and irrelevant, and was secondary evidence, being a carbon copy, and was merely a self serving declaration on the part of the plaintiff. The objection that the letter was immaterial and irrelevant, without more, was insufficient. McBride v. Johns, Ga.App., 36 S.E.2d 822(2). The objection to the letter as being secondary evidence was not good as it appeared that it was a duplicate carbon copy of the original and was made by the same stroke of the typewriter. Hannifin v. Wolpert et al., 56 Ga.App. 466(2), 193 S.E. 81; Newmans v. State, 65 Ga.App. 288, 289, 16 S.E.2d 87. But it is contended that the letter had a harmful and prejudicial bearing against the defendant on two important issues in the case, viz., (1) whether or not the plaintiff had complied with the demands of the defendant as to examinations under oath and subscribing the same, and (2) whether or not the defendant was in the exercise of good faith in contesting its liability under the policy.
The question whether the insured had complied with the demands of the insurer as to preliminary examinations under oath, and subscribing the same, as provided under the terms of the policy, was fully covered by other testimony in the case admitted without objection. The insured testified on oral examination in court substantially to the same contentions asserted by him in the letter. The record of the two examinations of the plaintiff prior to the filing of the suit were introduced in evidence by the defendant, and they show, in effect, the plaintiff's contentions respecting such examinations as stated in the letter which was introduced in evidence. For these reasons we do not think that the first alleged harmful and prejudicial effect of the self-serving declarations in the letter shows any error. The second contention that the letter was harmful and prejudicial to the defendant because of its bearing on the question whether or not the defendant was in the exercise of good faith in contesting its liability is also without merit. Our holding herein that the verdict for damages and attorneys' fees was not supported by the evidence removes any harmful effect of the letter relating to the good faith of the defendant.
3. Several grounds of the motion assign error on the refusal of the court to give certain charges as requested by the defendant. Neither of these assignments shows error. Whether or not the plaintiff was justified in refusing to subscribe the transcript of the questions propounded and the answers as made by him on the first examination, and in refusing to answer further questions on the second examination, under all the facts of this case and the ruling of this court in Nichols v. Pearl Assurance Co., Ltd., supra, were questions for decision by the jury. The charges requested by the plaintiff in error and refused by the court were not in accord with the ruling of this court heretofore made in this case, and the trial court did not err in refusing them.
4. Complaint is made in one ground of the...
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