Opinion
35561.
DECIDED MARCH 17, 1955.
Action on insurance policy. Before Judge Paschall. Bartow Superior Court. November 12, 1954.
Andrews Covington, Ingram Tull, for plaintiff in error.
J. L. Davis, contra.
The court erred in admitting in evidence a memorandum showing the date on which an insurance policy became effective, in the absence of evidence that the agent of the defendant insurance company made the memorandum as a part of the issuance of the policy or otherwise as a part of the res gestae, or that the agent otherwise had authority to make the admission on behalf of the insurance company; and the court erred in denying the amended motion for a new trial.
DECIDED MARCH 17, 1955.
This is the third appeal of this case. Monday v. Life Cas. Ins. Co. of Tenn., 82 Ga. App. 650 ( 62 S.E.2d 197); Life Cas. Ins. Co. of Tenn. v. Monday, 85 Ga. App. 659 ( 69 S.E.2d 910). The plaintiff amended his original petition, which alleged that the policy of insurance was in force at the time of the plaintiff's accidental injury, by alleging that the policy became effective on December 10, 1949. The jury found for the plaintiff, and the defendant excepts to the denial of its motion for a new trial as amended by the addition of two special grounds.
There was admitted in evidence over the objection of the defendant a 3-inch by 5-inch slip of paper containing on one side the following language: "Horace Monday — Pol #17073499 — Age 30 — $1000-10c Issued 12-12-49 — DLP 1-9-50 — Lapse date 2-30-50 Issued on Debit #1215 — P4 — GH — 7-17-53." The plaintiff introduced the paper in evidence for the purpose of showing an admission on the part of the defendant. The introduction of the paper was objected to on the grounds that it was not signed by anyone; that it was not shown "that anyone with any authority from the company had any authority to issue any such paper"; that it was in direct conflict with the terms of the policy; and that it was irrelevant and immaterial. The plaintiff testified in substance that sometime after the accident he went to the defendant's office in Cartersville and found at the office a man (he did not know and could not name him) behind the desk writing; that this man got up when the plaintiff came in; that the plaintiff asked the man on what date the policy became effective; and that he looked in some books and gave the plaintiff the memorandum above quoted. The admission of this paper was error for the reason that there was no evidence that the admission was made as a part of the res gestae, or by an officer of the corporation so authorized, or that the agent otherwise had authority to make the admission. Code § 4-315; Amicalola Marble Power Co. v. Coker, 111 Ga. 872 (1) ( 36 S.E. 950); Mitchell Auto. Co. v. McDaniel, 143 Ga. 516 (2) ( 85 S.E. 635); Ninth Dist. Agricultural c. School v. Wofford Power Co., 37 Ga. App. 271 ( 139 S.E. 916). The admission of the paper was harmful to the defendant because the court in its charge authorized the jury to find for the plaintiff if the effective date of the policy was December 10, 1949, or December 12, 1949.
It is not necessary to pass on the other special ground of the amended motion, showing newly discovered evidence which the movant contends shows that the memorandum was issued by the agent of another company in connection with another policy at a different place.
The court erred in denying the amended motion for a new trial.
Judgment reversed. Quillian and Nichols, JJ., concur.