Scottish Union & National Insurance v. Fortesque , 37 Ga. App. 366 ( 1927 )

Beoyx.es, C. J.

1. The amendment to the petition was properly allowed, and the petition as so amended was not subject to any ground of the demurrer interposed, and the court did not err in so ruling.

2. Ground 4 of the motion for a new trial complains of the admission in evidence of certain testimony for the plaintiff, over the timely and appropriate objections of the defendant. Among the objections urged were that the testimony was not authorized by any allegations in the petition, that it sought to vary the terms of the written contract declared upon, without any allegation of fraud, accident, or mistake, and that it tended to establish a special and different contract from the one declared on. Under the facts of the case these objections should have been sustained and the testimony excluded. See, in this connection, Central Railroad Co. v. Cooper, 95 Ga. 406 (22 S. E. 549); Conyers v. Yorkshire Ins. Co., 30 Ga. App. 6 (117 S. E. 102); 26 C. J. 510, § 719. Eor the same reason the court erred in admitting the documentary evidence set forth in ground 5 of the motion for a new trial.

3. It follows from the above-stated ruling that the court erred also in charging the jury as set forth in grounds 8 to 13 inclusive.

4. The charge of the court xipon the forms of the several verdicts that could be returned was to some extent confusing, and did not clearly and plainly instruct the jury upon the questions of damages and attorney’s fees.

5. Under all the facts of the case and the law pertinent thereto, the remaining special grounds of the motion for a new trial show no error.

6. As another trial must be had because of the errors heretofore pointed out, tlie question of the sufficiency of the evidence to support the verdict is not passed upon.

Decided November 16, 1927.

Judgment reversed.

Luke and Bloodworth, JJ., concur. Spalding, MaoBougald & Sibley, Hull, Barrett & Willingham, for plaintiff in error. Hammond & Kennedy, Paul T. Glumce, contra.