Clay v. Howington , 74 Ga. App. 794 ( 1947 )

1. The petition as amended set out a cause of action. The amended petition was but an elaboration of the cause of action set forth in the original petition and did not set up a new and distinct cause of action.

2. Under the facts of this case the court did not err in admitting in evidence the duplicate original statements showing the amount due as premiums on the insurance policy in question.

3. It is error for the court to permit, over objection, one witness to testify that another witness testified wrongfully or mistakenly. This is a jury question. In the instant case the nature of the answer given to an improper question did not work harm to the defendant's cause.

4. Delivery of a policy of fire insurance shall not be necessary "if, in other respects, the contract shall be consummated."

5. There is sufficient evidence to sustain the verdict.

DECIDED FEBRUARY 20, 1947. This appeal arose by reason of a petition filed in the Civil Court of Fulton County by E. F. Howington doing business as E. F. Howington, whom we shall call the plaintiff, against H. W. Clay, hereinafter called the defendant. The petition sought recovery upon an account for insurance premiums the plaintiff claimed that the defendant owed him on two insurance policies issued to the defendant on two of his planes. The sum claimed was $1274.40. To the petition the defendant filed an answer denying all the allegations of the petition except as to the residence of the defendant. A verdict was returned in favor of the plaintiff. An amended motion for a new trial was filed by the defendant, which was overruled. It is on this judgment as well as error assigned on exceptions pendente lite that a reversal is urged on behalf of the defendant. The petition as originally filed alleged: "On or about May 30, 1944, defendant requested your petitioner to secure for him insurance coverage on a Stinson Airplane, N.C. 13494, in the amount of $3000. Petitioner did secure said coverage by a policy, No. AHI-1164 issued by Federal Insurance Company in favor of defendant in the amount of $3000, effective June 5, 1944, for a period of one year covering a Stinson Airplane, NC-13494 and bearing a premium of $477.90." Paragraph 4 of the petition reads: "Said premium became due and payable upon the effective date of said policy, and demand has been made upon defendant for payment of same, but no payment has been received." Paragraph 5 alleges: "On or about June 30, 1944, defendant requested your petitioner to secure for him insurance coverage in the amount of $5000 on a Waco Airplane, N.C. 19362. Petitioner did secure said coverage by Policy No. AHI-1181 issued by Federal Insurance Company in favor of defendant in the amount of $5000, effective July 6, 1944, for a period of one year, covering Waco N.C. 19362 and bearing a premium of $796.50." Paragraph 6 of the petition alleges: "Said premium became due and payable on the effective date of said policy, and demand has been made upon defendant for payment, but no payment has been received." The plaintiff offered, and there was allowed, an amendment to paragraph 4 to add in line one thereof after the word "payable" the words "to the plaintiff" and to amend paragraph 6 likewise. Upon the call of the case the defendant made an oral motion to dismiss the petition. The court granted the motion. During the same term of court the plaintiff made a motion to vacate and revoke the order dismissing the original petition. The court granted this motion and reinstated the case. Thereafter the court allowed the plaintiff, over the objection of the defendant, to further amend the original petition as follows: "1. By striking paragraph 4 of said petition, as amended, and substituting in lieu thereof the following as paragraph 4 of said petition, to wit:

"When the defendant requested such coverage the plaintiff procured said insurance upon his own credit and paid the insurance company for said policy in accordance with his usual method of doing business and the practice followed by him in handling previous requests for insurance coverage received from the defendant and the defendant is indebted to the plaintiff for the premium due for said policy in the sum of $477.90, but defendant, upon demand, refused and refuses to pay the same.

"2. By striking paragraph 6 of said original petition, as amended, and substituting in lieu thereof the following as paragraph 6 of said petition, to wit:

"When the defendant requested such coverage the plaintiff procured said insurance upon his own credit and paid the insurance company for said policy in accordance with his usual method of doing business and the practice followed by him in handling previous requests for insurance coverage received from the defendant and the defendant is indebted to the plaintiff for the premium due for said policy in the sum of $796.50 but defendant, upon demand, refused and refuses to pay the same."

"3. By adding to said original petition, as amended, the following additional allegations designated as Count Two of said petition:

"Count two. 1. The defendant, H. W. Clay, is a resident of Georgia, Fulton County, and subject to the jurisdiction of this court.

"2. Defendant is indebted to petitioner upon an account stated in the principal amount of $1274.40 with legal interest from June 5, 1944, upon $477.90 and legal interest upon $796.50 from July 6, 1944, by reason of the following facts:

"3. On or about May 30, 1944, defendant requested your petitioner to secure for him insurance coverage on a Stinson Airplane, N.C. 13494, in the amount of $3000. Petitioner did secure said coverage by a policy, No. AHI-1164 issued by Federal Insurance Company in favor of defendant in amount of $3000, effective June 5, 1944, for a period of one year covering a Stinson Airplane, NC-13494, and bearing a premium of $477.90, which premium became due and payable to the plaintiff upon the effective date of said policy.

"4. On or about June 30, 1944, defendant requested your petitioner to secure for him insurance coverage in the amount of $5000 on a Waco Airplane, NC. 19362. Petitioner did secure said coverage by Policy No. AHI-1181 issued by Federal Insurance Company in favor of defendant in the amount of $5000, effective July 6, 1944, for a period of one year covering Waco NC-19362 and bearing a premium of $796.50, which premium became due and payable to the plaintiff on the effective date of said policy.

"5. When the defendant requested such coverage the plaintiff in each instance procured said insurance upon his own credit and paid the insurance company for said policies in accordance with his usual method of doing business and the practice followed by him in handling previous requests for insurance coverage received from the defendant and the defendant is indebted to plaintiff for the premium due for said policies, the principal amount of $1274.40 with interest thereon as stated above.

"6. On or about June 7, 1944, plaintiff rendered to defendant a statement in the amount of $477.90 covering the premium due on a policy No. AHI-1164 and on or about September 28, 1944, and monthly thereafter, the plaintiff has rendered to the defendant statements in the amount of $1274.40 for the premiums due on both of said policies and at no time until just prior to the filing of this suit did the defendant deny said indebtedness, but on the contrary, the defendant acknowledged the same to be a true and correct account and requested of the plaintiff additional time within which to pay the same.

"Wherefore, petitioner prays that this its amendment be allowed and ordered filed and that judgment be rendered in his favor against the defendant in the principal amount of $1274.40 with interest as stated above."

To the petition as amended in the first instance the defendant made a motion to dismiss the petition as then amended upon the following grounds: "1. That said petition set forth no cause of action against defendant.

"2. That said suit does not allege any contract between plaintiff and defendant for the recovery of the amounts sued for, or either of them.

"3. That the allegations of said suit are too indefinite to be the basis of a recovery thereon.

"4. That the allegations of said suit do not show upon what plaintiff contends he bases his right to recover, whether for premiums or for service in securing said policies.

"5. That said suit does not show what constitutes the consideration to the defendant from plaintiff for the alleged sums sued for.

"6. That said petition does not set out any contracts or agreements between the parties thereto but only sets out conclusions of plaintiff, that there were contracts or agreements authorizing recoveries for the sum sued for." And to the petition as reinstated and finally amended the defendant urged the above six objections, and further urged that the final amendment to the petition "set out a new and distinct cause of action," and that the order revoking the judgment dismissing the petition as amended in the first instance and allowing the same to be reinstated was erroneous. To all of these rulings of the court with reference to the petition as finally amended and to the order reinstating the case the defendant filed exceptions pendente lite and assigns error thereon. 1. Counsel for the defendant Clay (the plaintiff in error) after making certain preliminary remarks, some of which are somewhat facetious, states: "Seriously, this court will find that the real complaints of plaintiff in error are to the rulings complained of in the exceptions pendente lite and in the amendment to defendant's motion for a new trial, and we will argue them in this order." We will deal first with the questions in the order suggested by distinguished counsel for the defendant. It is our opinion that the original petition as amended in the first instance was not subject to dismissal for any of the six grounds as set out in the exceptions pendente lite for any of the reasons therein assigned. And the court very properly entered its order reinstating the original petition during the same term of court in which the petition was dismissed. We have set out the pleadings in detail. The court did not err in allowing the petition to be amended in the particulars set out in the final amendment which added a new count as well as other allegations which were allowed to the first count of the petition as finally amended. The amendment finally allowed permitting the original petition to proceed in two counts did not add a new and distinct cause of action and was not otherwise objectionable as pointed out by the defendant in his exceptions pendente lite. In the case of Henry Darling Inc., v.Harvey-Given Co., 40 Ga. App. 771 (151 S.E. 518), this court said: "Where an agent or subagent of an insurance company procures the company to deliver a policy to another as the insured and himself pays the premium, and the circumstances are such as to warrant the inference that the insured contemplated such action on the part of the agent and intended to reimburse him, he may sue and recover of the insured the amount so advanced for the insured's benefit." See also Milton v. Milton, 195 Ga. 130, 133 (23 S.E.2d, 411), which deals with more than one count in the petition.

2. Special grounds 1, 2, and 3 assign error upon admitting in evidence by the plaintiff, over objections of the defendant, original duplicate monthly statements which the plaintiff claims to have mailed to the defendant. Mr. Green, an agent for the plaintiff, testified that, after the policies on the two planes had been issued for the defendant at his request, the plaintiff mailed monthly statements to the defendant, and that the plaintiff kept duplicate originals of the monthly statements. The plaintiff served the defendant with notice to produce the originals of these statements. The defendant denied having received them in due course of mail. The witness Green stated in effect that the defendant stated that if the defendant received them the defendant thought that the statements were mailed to him by mistake. Green further testified that he exhibited the duplicate originals which were introduced in evidence to the defendant a short time before the policies expired while Green was endeavoring to collect the premiums from the defendant and the defendant admitted the correctness of the amount stated in the duplicate originals and asked for further time in which to pay the amount sued for. These duplicate originals were tendered in evidence by the plaintiff. The defendant objected to this admission in evidence on the ground that the plaintiff had failed to show that the original statements had ever been mailed to the defendant and therefore there was no basis of any presumption that the defendant had received the notices. In admitting the duplicate originals the court stated that they were not admitted on the basis of any presumption of receipt of them on the part of the defendant by virtue of their having been mailed to the defendant but the court admitted them on the basis of Green's positive testimony that they were exhibited to the defendant and the defendant admitted the correctness of the account as shown by the copies or duplicate originals, and requested additional time within which to pay. Of course, if the court admitted the copy statements on the principle of law that they had been properly mailed to the defendant, the admission of them was erroneous. Cassel v.Randall, 10 Ga. App. 587 (73 S.E. 858). But in our opinion they were admissible on the basis which the court gave in admitting them. The evidence sufficiently laid the foundation upon which the court admitted them. The fact that the evidence on the point is conflicting raises a question of fact for the jury and not for this court to determine. These grounds show no reversible error.

3. Special ground 4 assigns error upon the admission of testimony on cross-examination of the defendant by counsel for the plaintiff, over the objection of the defendant's counsel. The following questions were propounded and the following answers given:

"Q. Can you testify positively that you didn't have a conversation with Mr. John Green over the telephone with reference to that policy? A. The renewal of that policy? Q. The renewal of the policy. A. Yes, I think I can. Q. Are you positive that you did not have any such conversation with him in regard to the renewal of that policy? A. No sir, I didn't have any conversation with him in regard to the renewal of that policy. Q. And, if Mr. Green testifies that you did then he is just mistaken and wrong in saying that he had such conversation? A. One of us is wrong." When the last question was propounded, the attorney for the defendant objected to it and to any answer in response thereto. The defendant himself stated that he would answer it and the court permitted him to do so. While the last question propounded was improper and the court should have sustained the objection, but when we look to the defendant's answer to that question, no harm could possibly have resulted from the questions and answers. The witness did not say that the witness Green was wrong or mistaken. If he had, perhaps he would have invaded the province of the jury, but to answer that "one of us is wrong" is quite a different thing from saying that Mr. Green was mistaken or wrong. The last question propounded and the answer thereto as far as the facts of this case are concerned, did not violate the rule that one witness is not to be permitted to state whether the testimony of another witness is true.

4. Special ground 5 assigns error on the ground that the court erred in the admission of duplicate-original copies of the two insurance policies in question. Mr. Green, witness for the plaintiff testified with reference to the insurance policies that they were procured by the plaintiff from the insurance company, and that they were properly countersigned and became effective as of the date issued; that he was in charge of the office and that the original policies were, under his direction, properly prepared and addressed and stamped together with a statement of the insurance premium, to the defendant's address. He further testified that he did not know of his own knowledge that they were mailed to the defendant, but that they had never been returned to the plaintiff's office. The defendant was served with notice to produce the original insurance policies. In response, the defendant denied receiving the insurance policies through the mail. The court admitted the duplicate-original insurance policies in evidence. In admitting the said copies of the policies the court stated that they were not admitted because of any presumption of receipt of them by the defendant through the mail, but that they were admitted on the basis of the witness Green's identification of them as duplicate-original copies which Green testified were actually put into effect by the plaintiff upon the request of the defendant. In our opinion, and under the evidence in this case, the court did not err in admitting in evidence for the consideration of the jury the copy of the policies for the purpose of having the jury consider the issues in this case. Code, § 56-801 reads: "Nature of contract: Necessity of writing: Delivery: The contract of fire insurance is one whereby an individual or company in consideration of a premium paid, shall agree to indemnify the assured against loss by fire to the property described in the policy, according to the terms and stipulations thereof. Such contract, to be binding, shall be in writing; but delivery shall not be necessary if, in other respects, the contract shall be consummated."

5. General grounds: While the evidence is conflicting on many material issues it is sufficient to sustain the verdict.

The court did not err in overruling the motion for a new trial for any of the reasons assigned.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.