Smith v. Aetna Ins. Co.

• Decision Date: 24 October 1938
• Docket Number: 27139.
• Citation: 199 S.E. 557,58 Ga.App. 711
• Parties: SMITH v. ÆTNA INS. CO.
• Court: Georgia Court of Appeals

199 S.E. 557

58 Ga.App. 711

SMITH v. ÆTNA INS. CO.

No. 27139.

Court of Appeals of Georgia, Second Division

October 24, 1938

Rehearing Denied Nov. 16, 1938.

Syllabus by the Court.

1. The evidence demanded the verdict for the defendant. Any errors in the charge to the jury were immaterial.

2. It was not error to sustain the demurrer to the second count of the petition, as it covered substantially the same ground as the first count.

3. If there was any error in sustaining the demurrer to that part of the petition which related to damages and attorney's fees, it was harmless, for the reason that the evidence demanded the verdict for the defendant, which means that the defendant was justified in refusing to pay the claim; and if a new trial were granted, and the issue confined to the right to recover damages and attorney's fees, as it would have to be, a verdict for damages and fees would not be authorized in view of the verdict for the defendant on the main issue.

4. Where a fire-insurance company defends a case brought on a policy, and answers that it is not liable thereon because the policy provides that "if a building or any part thereof fall, except as a result of fire, all insurance by this policy on such building or its contents shall immediately cease," and alleges that a tornado or violent windstorm caused a part of the building described in the policy to fall, it was not error to overrule a special demurrer to the allegations, based on the objection that there was no allegation that a material or substantial part of the building was caused to fall otherwise than by fire, for the reason that the courts have construed the language used in the policy, and the insurance company is entitled in its pleadings to the same construction as the courts have placed on the same words in the policy.

Error from Superior Court, Hall County; B. P. Gaillard, Jr., Judge.

Suit by A. E. Smith against the Ætna Insurance Company to recover on a policy of fire insurance. To review a judgment for defendant, the plaintiff brings error.

Judgment affirmed.

Carl N. & Frank T. Davie, of Atlanta, and Boyd Sloan, of Gainesville for plaintiff in error.

MacDougald Troutman & Arkwright, and Dudley Cook, all of Atlanta, and W P. Whelchel and G. Fred Kelley, both of Gainesville, for defendant in error.

FELTON Judge.

1, 2. This is a suit on a policy of fire insurance. The positive uncontradicted, and unimpeached testimony of several of the defendant's witnesses showed that a material and substantial part of the building insured was caused to fall by a tornado before it burned. Under the terms of the policy in such a case there could be no recovery. The testimony of the...