37 S.E.2d 227 | Ga. Ct. App. | 1946
Lead Opinion
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 the 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.
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 WholesaleGrocery Co. v. Faver,
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 latter was immaterial and irrelevant, without more, was insufficient.McBride v. Johns,
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 *454 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. PearlAssurance Co., 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 motion of a number of excerpts from the charge, set out in several different paragraphs, all of which relate to damages and attorneys' fees which may be recovered in an action against an insurance company acting in bad faith in refusing to pay a loss sustained by a policy holder. The exceptions to the charges complained of are not material and will not be considered because the damages and attorneys' fees included in this verdict were not authorized by the evidence, and we are affirming the case with direction that they be written off.
5. The final complaint is that the verdict was excessive in including damages and attorneys' fees in addition to the face amount of the policy. The Code, § 56-706, states that insurance companies, *455
refusing to pay a loss within 60 days after a demand shall have been made by the policy holder, shall be liable on the policy, in addition to the loss, for not more than 25 percent on the liability for said loss, and also all reasonable attorneys' fees for the prosecution of the case, provided "it shall be made to appear to the jury trying the case that the refusal of the company to pay said loss was in bad faith." The burden was on the plaintiff of showing bad faith on the part of the defendant. "`Bad faith' in refusing to pay the claim within 60 days after demand is a fact to be proved in order to recover this penalty and attorney's fees." North British c. Ins. Co. v. Parnell,
Judgment affirmed, with direction. Sutton, P. J., concurs,and Felton, J., concurs in the judgment. *456
Addendum
The judgment of the trial court overruling the motion for new trial in this case was affirmed, with direction that the $750 damages and $750 attorneys' fees be written off of the verdict and judgment. Motion has been made by the plaintiff in error that this court tax the costs for bringing the case to this court upon the defendant in error, upon the ground that there has been a substantial modification of the judgment of the court below.
Under the rulings in National-Ben Franklin Fire Ins. Co. v.Darby,
Sutton, P. J., and Felton, J., concur.