Patterson v. Burroughs , 19 Ga. App. 72 ( 1916 )

Bboyuss, J.

1. Under the particular facts of this case the court erred in overruling the motion of. the plaintiff in error to amend the brief of evidence by referring to and attaching thereto a certain receipt and a certain policy of insurance, both of these documents having been introduced as evidence upon the trial, and used by counsel for both parties during the argument of the motion for a new trial; although the motion to amend was made after the brief of evidence had been agreed upon by counsel, approved by the court; and ordered filed as part of the record, and after the motion for a new trial had been denied.

2. The receipt and the insurance policy mentioned above being attached as exhibits “A” and “B” respectively to the motion to amend the brief of evidence, and that motion having been transmitted-to this court as a part of the record in the ease, this court will grant the prayer of the plaintiff in error and amend the brief of evidence by attaching thereto the receipt and the policy of insurance. A consideration of these documents is necessary for a clear understanding of the errors complained of.

3. The charges complained of in the 4th, 5th, 6th, and 7th grounds of the amendment to the motion for a new trial are erroneous, for the reason that they are not supported by any evidence in the case. The excerpt from the charge excepted to in the 6th ground is erroneous for the additional reason that it submitted to the jury the question whether, under the circumstances, the defendant was protected as to his insurance for a year. This was a question of law and should not have been submitted to the jury.

4. There was acute conflict between the testimony of the parties in the ease, and, while the jury had the exclusive right to settle this matter for themselves, they might have decided otherwise had it not been for the errors in the charge of the court. As a new trial must be granted on account of these errors, it is unnecessary to pass on the other questions in the case. Judgment reversed..

Bodges, J., absent.