U.S. Fire Ins. Co. v. Campbell

• Court: Georgia Court of Appeals
• Writing for the Court: NICHOLS
• Citation: U.S. Fire Ins. Co. v. Campbell, 138 S.E.2d 386, 110 Ga.App. 276 (Ga. App. 1964)
• Decision Date: 21 September 1964
• Docket Number: No. 40880,No. 2,40880,2
• Parties: UNITED STATES FIRE INSURANCE COMPANY v. R. C. CAMPBELL

Page 386

138 S.E.2d 386

110 Ga.App. 276

UNITED STATES FIRE INSURANCE COMPANY v. R. C. CAMPBELL.

No. 40880.

Court of Appeals of Georgia, Division No. 2.

Sept. 21, 1964.

Syllabus by the Court

1. The defendant was not estopped from denying that the protective provisions of the insurance policy covered the property loss sustained by the plaintiff.

2. The uncontradicted evidence, when applied to the pertinent provisions of the insurance policy, demands a finding for the defendant.

R. C. Campbell brought suit against United States Fire Insurance Company to recover for the loss by burglary of a cigarette vending machine and its contents, which was alleged to be covered by a policy of insurance issued by the defendant to the plaintiff. The defendant filed demurrers which the trial court overruled and by agreement the case was tried by the court without a jury and a judgment for $440.44 was entered up in favor of the plaintiff. Thereafter, the defendant filed its motion for new trial which was overruled on each and every ground. To the judgments overruling defendant's demurrers and to the judgment of the trial court denying its motion for new trial, the defendant excepted and assigned error. By its brief on appeal in this court the defendant abandoned all assignments of error except the assignment of the ruling denying its motion for new trial based on the general grounds only.

Memory, Barnes & Memory, S. F. Memory, Jr., Waycross, for plaintiff in error.

George E. Maddox, Douglas, for defendant in error.

NICHOLS, Presiding Judge.

1. Plaintiff raises the point in his brief in this court that since the defendant abandoned its assignment of error on the trial court's judgment overruling defendant's demurrers it is now estopped from attacking issues in the general grounds of its motion for new trial because, as plaintiff contends, these issues were resolved in favor of plaintiff by such ruling of the trial court which is now law of the case. Plaintiff cites the case of Hester v. Dixie Finance Corporation, 109 Ga.App. 204, 135 S.E.2d 504, in support of his contention.

The case at bar is distinguishable on the facts from Hester, supra, and similar cases in that the facts stated in the pleadings in the Hester case, supra, and the facts shown on the hearing were the same, whereas, the contrary appears in the case sub judice. The plaintiff's petition here alleges the existence of an insurance policy and a loss covered by such policy while the evidence adduced on the trial showed the existence of such a policy, but the loss sustained by plaintiff did not fall within the protective coverage of same as will be shown in Division 2 of this opinion.

2. The sole questions to be determined in this case are: (1) Whether or not the property alleged to have been burglarized was so situated (at the time of the alleged burglary) as to come within the protective provisions of the insurance policy, and (2) whether or not the property involved was taken under such circumstances as would constitute burglary.

The relevant and pertinent provisions of the insurance policy to be...