Summary
In Fidelity Cas. Co. complaint was also made of the admission into evidence of a typewritten letter addressed to the plaintiff.
Summary of this case from Smith v. HatgimisiosOpinion
38356.
DECIDED SEPTEMBER 7, 1960.
Action on insurance policy. Columbia Superior Court. Before Judge Anderson. March 3, 1960.
Stevens Stevens, for plaintiff in error.
Randall Evans, Jr., contra.
1. Where evidence is objected to and a part of that objected to is admissible it is not error to admit all of such evidence.
2. Execution of a writing received through the mail may be proved by circumstantial evidence.
3, 4. The excerpts from the charge complained of in special grounds 3, 4 and 5 show no harmful error.
5. An excerpt from a charge giving the contentions of the parties as shown by their pleadings is not error.
6. The charge authorizing the jury to find "bad faith" and "attorney's fees" as provided for in certain cases by Code § 56-706 was not error.
7. It is not error to charge a correct principle of law because another correct principle was not charged.
8. While the verdict was excessive the judgment overruling the motion for new trial is affirmed on condition that that part of the verdict which was unauthorized is written off.
DECIDED SEPTEMBER 7, 1960.
Byron B. Mangum sued Fidelity Casualty Company of New York on an insurance contract between the parties. The policy of insurance covered collision damage to the plaintiff's automobile less $50 deductible. The petition alleges that the plaintiff purchased a new 1958 Ford automobile on May 26, 1958, and on June 19, 1958, while it was properly parked it was struck by another automobile causing such damage that its market value was reduced by $1,436.76; that the defendant refused to pay such claim although the plaintiff properly reported the collision to the defendant and requested payment of his damages. The plaintiff's petition, as finally amended, prayed for judgment for $1,245 as the damage to the automobile plus interest from the date of the collision, plus attorney's fees and the statutory "bad faith" penalty in a specified amount. The defendant in its answer admitted the existence of the contract, the collision, and liability in the amount of $246.38 but denied bad faith and alleged further that the plaintiff's automobile could be repaired by qualified mechanics for such $246.38. On the trial, the jury returned a verdict for the plaintiff in the full amount sued for in his amended petition. The defendant's amended motion for new trial was overruled, and it is to such judgment adverse to it that the defendant now excepts.
1. Special ground 1 of the defendant's amended motion for new trial complains of the admission of certain testimony of the plaintiff into evidence. The testimony shown in this special ground constitutes more than a page of "briefed" evidence, some of which was admissible, and a part of this testimony was again brought to the attention of the jury by the defendant when it had the plaintiff on cross-examination. No harmful error is shown by this ground of the amended motion for new trial. See King v. Sharpe, 96 Ga. App. 71, 77 ( 99 S.E.2d 283), and cases there cited.
2. Special ground 2 complains of the admission into evidence of a typewritten letter addressed to the plaintiff. Under the decision of the Supreme Court in Deaderick v. Deaderick, 182 Ga. 96(2) (185 S.E. 89), since proof of the execution of a writing such as that under consideration may be made by circumstantial evidence, it was not error to admit this evidence where there was evidence that the purported writer of the letter later talked to the plaintiff about such letter.
3. Special ground 3 complains of an excerpt from the charge dealing with the waiver of a proof of loss by the defendant and the penalty provided for by Code § 56-706. The defendant's answer admitted liability in a lesser amount than the plaintiff claimed. Therefore, the charge with reference to waiving a proof of loss was, if error, harmless, for the admission of some liability waived the technical requirements of a proof of loss. The remainder of the excerpt complained of which referred to a refusal of the defendant to "settle" with the plaintiff within 60 days, rather than as contended by the defendant a refusal to "pay" within 60 days, was not harmful since the only connotation which could have been put on the word "settle" under the charge as given would have been "pay". For the same reason special ground 4 is without merit.
4. Special ground 5 complains of the instruction given the jury as to what facts and circumstances it should consider in deciding the case. Under the decision of this court in Sheridan v. Haggard, 95 Ga. App. 792 ( 99 S.E.2d 163), while the charge given may not have been technically correct, it was not harmful to the defendant.
5. Special ground 6 complains of an excerpt from the charge wherein the court was ostensively giving a narrative of the plaintiff's contentions as shown by the original petition. The court immediately after giving such contentions instructed the jury that it would have the pleadings out with it and that "you may refer to them as often as you desire to find the issues and contentions." It has been repeatedly held that such an instruction is not erroneous. See Limbert v. Bishop, 96 Ga. App. 652, 653 ( 101 S.E.2d 148), and citations.
6. Special ground 7 complains that the excerpt from the charge which authorized the jury to award attorney's fees and the penalty as provided by Code § 56-706 was error because there was no evidence to justify a finding of "bad faith." The defendant had offered the plaintiff less than 75%¢ on the dollar of the lowest estimate proved on the trial of the case and this estimate did not include certain repairs claimed to be necessary by the plaintiff and which the witness making the estimate did not include because he did not know whether they were necessary or not. Under the decision in Jackson v. Motors Ins. Corp., 97 Ga. App. 658 ( 104 S.E.2d 253), it cannot be said that the charge complained of was error for the reason assigned.
The further argument that such charge was error because the plaintiff did not prove that he had filed a "proof of loss" is without merit where as here the defendant admitted liability under the contract which of necessity meant that any required "proof of loss" was either filed or waived.
7. Special ground 8 complains that the trial court erred in charging the jury that it should find for the plaintiff in a lump sum when it should have charged the jury to find separately on each item for which recovery was sought. In other words it is contended that the only proper form of verdict for the plaintiff would be: "$ ____ as due under the policy, $ ____ interest, $ ____ penalty, $ ____ attorney's fees." While generally such form of verdict is given the juries in cases such as the one sub judice, and such may be the better practice, there is no requirement that the verdict, where separate items of recovery are sought, be in such form. In Georgia Co-operative Fire Assn. v. Harris, 124 Ga. 114 ( 52 S.E. 88), the Supreme Court held that where separate items of recovery were sought under a fire insurance policy, loss of realty and personalty, that it was not necessary for the jury to specify the recovery allowed on each item but that a lump sum verdict was permissible. Code § 110-103 requires the trial court, in civil cases, to give the jury written instructions as to the form of verdict when requested by the jury. No such request was made. Therefore, where as here no request was made for a different form of verdict, either by the movant or the jury, it was not error as a matter of law for the court to fail to instruct the jury as to some other form of verdict which was also a correct form.
8. Special ground 10 complains of the failure of the court to charge, without request, an applicable principle of law which, while error, was not harmful under the circumstances of this case in view of the ruling in the next division of the opinion.
9. Special ground 9 complains that the verdict was excessive, and such ground will be considered in connection with the usual general grounds of the motion for new trial.
On the date of the trial the plaintiff amended his petition and prayed for judgment as follows: "(a). Damage to automobile, less $50.00 deductible under policy. $1,245.00. (b). Interest from June 19, 1958 to September 28, 1959 at seven percent, 87.15. (d). For reasonable attorney's fees because of defendant's bad faith in refusing to pay. $1,000.00. (e). For 25 percent statutory penalty because of defendant's bad faith in refusing to pay. $561.25. Total, $2,806.25 [sic]."
The paragraph of the prayer designated as (c) was expressly stricken, which paragraph had sought recovery for an alleged item of damages not covered by the policy of insurance.
The defendant in its answer admitted that it was indebted to the plaintiff and since the amount offered the plaintiff was such a small portion of the lowest estimate of the repairs necessary as a result of the incident out of which the claim under the policy arose, it cannot be said that the finding of the penalty and attorney's fees authorized by Code § 56-706 was unauthorized. There was evidence authorizing the amount of the attorney's fees sought.
Under the decisions of the Supreme Court and this court in Firemen's Ins. Co. v. Oliver, 182 Ga. 212 ( 184 S.E. 858); and Jackson v. Security Ins. Co., 54 Ga. App. 133 (1) ( 187 S.E. 236), interest from the date of the loss was not a recoverable item since the amount sought was not liquidated. Code § 56-706 authorizes a penalty, in cases where the insurance company is guilty of bad faith in an amount "not more than 25% on the liability of said company for said loss; also reasonable attorney's fee for the prosecution of the case against said company." This section does not authorize the penalty of 25% to be based on the total amount recovered. Accordingly, the maximum amount of penalty recoverable under the allegations of the petition as amended was 25% of $1,245, or $311.25.
The jury returned a verdict for the plaintiff in the full amount sued for and of this amount $337.15 was not recoverable as a matter of law. Therefore, the verdict was excessive.
The plaintiff sought 4 items of recovery in the petition as amended. The total of these figures, as shown by the pleadings, was incorrect, but the jury returned a verdict in the same amount as the erroneous total. The only inference is that the jury was seeking to return a verdict for the total amount sued for. Therefore, the line of cases relied upon by the defendant ( Walton v. Johnson, 212 Ga. 378, 92 S.E.2d 861; Reserve Life Insurance Co. v. Gay, 214 Ga. 2, 102 S.E.2d 492; Avery Co. v. Middlebrooks, 20 Ga. App. 724, 93 S.E. 227), which hold that where several items of recovery are sought, and a verdict for less than such total is returned, but for more than the total authorized by the evidence, the illegal portion of the verdict cannot be written off, is not applicable to the facts in the present case. The plaintiff's petition as amended sought 4 items of recovery, each item being specified as to amount, but the total shown as being prayed for was not the sum of these 4 items. However, since the jury returned a verdict in the "total" amount sought it must be concluded that the jury was seeking to return a verdict for the plaintiff as to each item in the full amount sought. Accordingly, the excess in the present case is determinable, and since the total amount sought under the policy ($1,245), the attorney's fees ($1,000), and the penalty provided for by Code § 56-706 ($311.25), were authorized by the evidence, the judgment of the trial court overruling the defendant's motion for new trial will be affirmed provided that that part of the verdict in excess of the total of the above amounts ($2,556.25), is written off by the plaintiff within 10 days, otherwise the judgment overruling the defendant's motion for new trial is reversed.
Judgment affirmed on Condition. Felton, C. J., and Bell, J., concur.