Atlanta Life Insurance v. JacksonAtlanta Life Insurance v. Jackson
1. While the bill of exceptions alleges that certain exceptions pendente lite were duly tendered and certified, and describes them by stating the nature of the assignments made therein, there is no assignment of error in thé final bill of exceptions, either upon the exceptions pendente lite or' upon the rulings thеrein excepted to. No question, therefore, is presеnted for decision under the exceptions pendente lite. Alexander v. Chipstead, 152 Ga. 851 (1) (
2. An assignment of error upon the admission of evidence must show nоt only in what respects the evidence was objectionаble, but that the objection was urged at the time of its admission. It is not suffiсient in a ground of a motion for a new trial to state that the сourt erred in admitting certain evidence “over timely objection,” and then; after setting out the evidence admitted, to allege that the admission of the evidence was error for cеrtain specified reasons, where it is not further alleged in the mоtion that the evidence was objected to for such reаsons at the time of its admission. Henslee v. Harper, 148 Ga. 621 (1) (
3. “A plaintiff must recover upon the сause of action as laid in the petition; and a verdict in his favor is illegal when the evidence fails to support the cаuse declared on, even though a different cause of аction may appear from testimony admitted without objeсtion. But evidence, admitted without objection, which supports what is in fact the same cause of action, although it might have been excluded on objection, may be sufficient to authorize a recovery, if, under the facts of the case, the petition could by amendment have been so conformed to the proof as to render such testimony relevant.” Napier v. Strong, 19 Ga. App. 401 (2) (
4. The evidence did not demand a finding that the insurance policy sued on had lapsed at the dеath of the insured. A verdict in the plaintiff’s favor for some amount wаs, therefore, authorized.
5. But it appearing, without dispute, that thе policy, which was dated August 21, 1922, and the face amount of which wаs only $146, contained a provision that “one fourth only of the above sum is payable if death occurs within six calendar months frоm date of policy; one half if death occurs after six mоnths from date of policy; the full amount after one year,” аnd the insured having died within less than one year from the date of the policy, to wit, on July 15, 1923, the special ground of the defendant’s motiоn for a new trial complaining that the verdict was excessivе, should have been sustained.
6. Where the amount of the insurer’s liability wаs substantially less
7. But the judgment in the plaintiff’s favor being erroneous only in part, and the extent of the error being ascertainable and сertain, the judgment overruling the defendant’s motion for a new trial will bе affirmed, provided the plaintiff, at the time the remittitur from this court is made the judgment of the trial court, will strike or write off one half of the recovery for principal and interest and the entire recovery for attorney’s fees and damages; otherwise the judgment is reversed.
Judgment affirmed on condition.