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Kilgore v. Nat. Life Acc. Ins. Co.

Court of Appeals of Georgia
Sep 21, 1964
138 S.E.2d 397 (Ga. Ct. App. 1964)




Action on insurance policy. Fulton Civil Court. Before Judge Camp.

Saul Blau, for plaintiff in error.

Edenfield, Heyman Sizemore, William H. Major, contra.

1. Punitive damages are not recoverable in the absence of actual damages.

2. It is not error to overrule an objection to documentary evidence, consisting of 31 pages and introduced as one exhibit, when the objection is to the whole exhibit and a part thereof is admissible in evidence.

3, 4. Where evidence is excluded or admitted contrary to the position taken by the movant in a motion for new trial, and at another time during the progress of the trial such evidence or similar evidence is admitted without objection no reversible error is shown.

5. This court passes upon the sufficiency and not the weight of evidence introduced in the trial court in ruling upon the usual general grounds of a motion for new trial.


Gus Kilgore, Jr., by his mother as next friend, sued National Life Accident Insurance Company to recover under an insurance policy issued by the defendant for the loss of the sight of his left eye. The plaintiff sought to recover, in addition to the amount claimed under the policy for the loss of the sight of his eye, the statutory penalty and attorneys fees, and additional punitive damages because: "said defendant has been guilty of wilfull misconduct and has caused the plaintiff unnecessary trouble and expense by refusing to forward to the plaintiff his insurance policy and said plaintiff states that according to his belief that the reason the said policy was not issued was that the defendant desired to hinder, delay and prevent the plaintiff from suing on his claim and the failure of the defendant to forward the said policy to the plaintiff was a breach of duty incumbent on it to deliver the policy upon payment of the premiums and because of said breach, the defendant's acts in the premises amount to bad faith for the failure to deliver the said policy to the plaintiff, the plaintiff is entitled to punitive damages in the amount of Fifty Thousand ($50,000) Dollars."

The defendant demurred to the above quoted language seeking fifty thousand dollars punitive damages and the plaintiff amended by adding the following language thereto: "For the reason that the defendant held the said policy wrongfully although it was the property of the plaintiff, and refused to deliver same to the plaintiff said actions being a trespass upon the personal property of the plaintiff." Thereafter, the defendant renewed its demurrers and moved to strike said paragraph as amended. The trial court sustained such demurrers and motion and ordered such language stricken from the petition.

On the trial of the case without the intervention of a jury, the trial court rendered judgment for the defendant and thereafter overruled the plaintiff's amended motion for new trial. Error is assigned on the judgment overruling the plaintiff's amended motion for new trial as well as the judgments striking the paragraphs of the petition seeking punitive damages as quoted above.

1. Assuming but not deciding that the plaintiff's petition set forth a cause of action against the defendant for a tort under the allegations of paragraph 9 of the petition as amended in addition to the action on the insurance contract, the allegations relied upon to support the punitive damages show no actual damages and under the Code as well as under numerous decisions of the Supreme Court and this court punitive damages are not recoverable in the absence of actual damages (See Code § 105-1002; Foster v. Sikes, 202 Ga. 122, 126, 42 S.E.2d 441; Hitchcock Corp. v. Turner, 102 Ga. App. 452, 116 S.E.2d 653), since punitive damages are given only as additional damages to deter the wrongdoer from repeating the trespass or as compensation for wounded feelings. Code Ann. § 56-1206 provides for punitive damages where an insurer is guilty of bad faith in refusing to pay under the terms of an insurance policy, and the plaintiff's petition elsewhere seeks to recover such damages, but in the absence of such authority, exemplary or punitive damages are not recoverable for the breach of a contract. See Code § 20-1405. The judgment striking such paragraph of the plaintiff's petition shows no error.

2. Special ground numbered 1 of the amended motion for new trial complains of the introduction into evidence of certain documentary evidence by the defendant. Such evidence consisted of hospital records containing the recorded opinions (diagnoses) made by physicians who were not witnesses on the trial of the case, and under the decision of this court in the cases of Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872 ( 99 S.E.2d 370) and Meeks v. Lunsford, 106 Ga. App. 154 (1) ( 126 S.E.2d 531), construing the Act of 1952 (Ga. L. 1952, p. 177), such evidence was not admissible. However, in the present case the plaintiff examined a witness on direct examination eliciting certain of the opinions shown in such record and the defendant without objection by the plaintiff, cross examined such witness eliciting other opinions shown by such hospital records. Under the decision in Healan v. Powell, 91 Ga. App. 787 (2) ( 87 S.E.2d 332), and similar cases the admission of such part of the hospital records as had been testified to by such witness was not reversible error; and since all the hospital record (consisting of 31 pages), was not inadmissible under the above cited authority, a part thereof consisting of a record of the treatment given to the insured as well as entries made by the physician who testified on the trial, the overruling of the objection to the whole hospital record was not error. See Clemones v. Alabama Power Co., 107 Ga. App. 489 (5) ( 130 S.E.2d 600); Brantley v. Heller, 101 Ga. App. 16 ( 112 S.E.2d 685), and citations.

3. Special ground 2 complains that the trial court erred in sustaining an objection by the defendant to the plaintiff's mother testifying as to the ability of the plaintiff to see before and after the alleged injury which is the basis of the present action.

It is unnecessary to decide whether such evidence was admissible over objection since the same witness, elsewhere in her testimony, testified without objection to the same facts. Accordingly, the judgment overruling the motion for new trial on such grounds shows no error. See Insurance Co. of N. America v. Gulf Oil Corp., 106 Ga. App. 382, 392 ( 127 S.E.2d 43), and citations; and Krasner v. Mullins, 108 Ga. App. 171 ( 132 S.E.2d 533).

4. During the trial of the case a witness for the defendant was asked a question on direct examination with reference to the procedure which was used in handling applications for insurance and the plaintiff objected on the ground that the general customs and general practices were not admissible unless they were a part of the contract referred to. The trial court overruled such objection and error is assigned thereon in the sole remaining special ground of the motion for new trial.

During cross examination of the defendant's witness counsel for the plaintiff elicited detailed information from the witness as to the practice of the defendant company in regard to the issuance of policies. Accordingly, no reversible error is shown by this ground of the motion for new trial since, even if the overruling of such objection was error, error in improperly admitting evidence is not ground for reversal where evidence to the same effect is later admitted without objection. Healan v. Powell, 91 Ga. App. 787, 790 supra; Pound v. Smith, 101 Ga. App. 500, 501 ( 114 S.E.2d 280).

5. The evidence adduced on the trial of the case authorized the finding for the defendant and, since the question as to the weight of evidence is for the trial court and this court is limited to the question of the sufficiency of the evidence, the judgment overruling the usual general grounds of the plaintiff's motion for new trial must be affirmed. See Adler v. Adler, 207 Ga. 394, 405 ( 61 S.E.2d 824).

Judgment affirmed. Hall and Russell, JJ., concur.

Summaries of

Kilgore v. Nat. Life Acc. Ins. Co.

Court of Appeals of Georgia
Sep 21, 1964
138 S.E.2d 397 (Ga. Ct. App. 1964)
Case details for

Kilgore v. Nat. Life Acc. Ins. Co.

Case Details


Court:Court of Appeals of Georgia

Date published: Sep 21, 1964


138 S.E.2d 397 (Ga. Ct. App. 1964)
138 S.E.2d 397

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