Opinion
36805.
DECIDED SEPTEMBER 12, 1957.
Action on insurance policy. Before Judge Parker. Fulton Civil Court. April 25, 1957.
E. B. Judge, for plaintiff in error.
Frank A. Bowers, contra.
1. Where an oral motion to dismiss a petition is based solely on specific grounds, this court will not pass on additional grounds which are stated in the plaintiff in error's brief, but were not contained in his original motion.
2. Where, as in this case, a motion for new trial is denied on the general grounds, an exception to the trial judge's failure to award a nonsuit will not be considered where the case resulted in a verdict for the plaintiff.
3. The evidence being sufficient to support the verdict the general grounds of the motion for new trial are without merit.
DECIDED SEPTEMBER 12, 1957.
J. A. Foster, individually and for the use of Associates Investment Company, Associates Discount Corporation Subsidiaries, filed a suit against Reserve Insurance Company to recover under an insurance policy for damages sustained to a vehicle belonging to J. A. Foster.
The petition alleged in substance: On October 17, 1955, the defendant issued a policy of insurance to the plaintiff in which the defendant agreed to pay the plaintiff the actual cash value of the automobile insured less $50 in the event the automobile suffered damage by collision between October 17, 1955, and April 17, 1957. The policy, which was attached to and made a part of the petition, provided that the defendant would pay the loss caused to the automobile by a collision with another object less the stated deductible amount of $50. The petition further alleged that: On January 7, 1956, the automobile was damaged by colliding with a road barricade on an access highway, while being driven by the son of the plaintiff; the plaintiff immediately thereafter reported the collision and damage to the defendant and requested forms for submitting proof of loss; about two weeks after the report was made the defendant sent its agent, J. J. Anthony, to talk to the plaintiff about his loss; J. J. Anthony took possession of the automobile and shortly thereafter reported to the plaintiff that the defendant would not furnish proof of loss forms, would not arbitrate the plaintiff's loss and would not pay the plaintiff or the lienholder of the automobile any amount on the loss, stating that he did not believe the automobile was damaged in the way and manner reported by the plaintiff; at the time of and immediately before the collision the actual cash value of the automobile was $850 and immediately after the collision the actual cash value of the automobile was $175; the plaintiff prays for a judgment in the sum of $625 and the cost of the suit.
The defendant's answer alleged in part that: the defendant did not take possession of the plaintiff's automobile, nor did the defendant inform the plaintiff that it would not furnish proof of loss forms to the plaintiff; the defendant did not inform the plaintiff that it would not arbitrate the loss and would not pay any amount on the loss; the plaintiff's automobile was damaged in the amount of $63; the defendant was ready and willing to pay the plaintiff $13.50 which was due under his policy of insurance; the defendant had at no time had possession of the plaintiff's automobile and had at no time disposed of the plaintiff's automobile.
On the trial counsel for the defendant made an oral motion to dismiss the petition, which was denied. At the termination of the plaintiff's evidence, counsel for defendant made a motion for a nonsuit which was also denied.
The evidence disclosed that: the plaintiff had an insurance contract with the defendant which provided that the defendant would pay the plaintiff the amount of the loss caused by a collision less $50, which occurred between October 17, 1955 and April 17, 1957; a collision occurred between these dates; the son of the plaintiff testified that he notified the defendant of the collision on the same date it occurred; the plaintiff, an automobile mechanic, testified that the value of the automobile immediately prior to the collision was approximately $1,000 and immediately after the collision it was worth between $150 and $175.
The jury returned a verdict for the plaintiff and the defendant made a motion for new trial on the general grounds. This motion was denied and it is to this and the above two adverse rulings that the defendant now excepts.
1. The defendant made an oral motion to dismiss the petition on two grounds. The first ground was based on the contention that the plaintiff failed to allege the amount of damages to his automobile. The petition alleged the actual cash value of the automobile immediately before and after the collision and these were the only allegations necessary to show the amount of damages to the automobile.
The second ground of the motion stated that the plaintiff did not allege that the automobile was a total loss as a result of the collision. It was not necessary that the plaintiff allege that the automobile was a total loss in order for the petition to set forth a cause of action under the provisions of the policy.
The defendant based his oral motion to dismiss solely on the grounds discussed above, and this court, which sits for the purpose of reviewing rulings of the trial courts, will not pass on additional grounds that are stated in the defendant's brief, but which were not contained in his original motion. Haynes v. Thrift Credit Union, 192 Ga. 229 (2) ( 14 S.E.2d 871); Blount v. Metropolitan Life Ins. Co., 190 Ga. 301, 304 (4) ( 9 S.E.2d 65). The oral motion to dismiss the petition was without merit and the trial judge did not err in denying it.
2. In Guarantee Trust Life Ins. Co. v. Hill, 90 Ga. App. 287 (3) ( 82 S.E.2d 885) it is held: "An exception to the refusal of the trial court to award a nonsuit will not be considered where the case resulted in a verdict for the plaintiff, and a motion for new trial was denied on the ground that the verdict was contrary to the evidence and without evidence to support it." Under authority of the above quoted case the defendant's exception to the denial of the motion for a nonsuit will not be considered.
3. The evidence disclosed a contract of insurance between the parties which provided that the defendant was to pay the plaintiff's loss to the automobile in question caused by a collision with another object, minus $50 which was subtracted under what is known as a deductible clause; the collision took place within the time the automobile was insured; the defendant was notified on the same date the collision occurred and the defendant admitted liability in its answer and the only element of proof then necessary to the plaintiff's right of recovery under the provisions of the policy was the amount of damage done the automobile. The plaintiff testified that the value of the automobile immediately before the collision was approximately $1,000 and immediately after the collision the value of the automobile was between $150 and $175.
While it is true that the plaintiff proved the collision took place on a different date from that alleged in the petition, the introduction of the evidence as to the different date, without objection, had the effect of amending the petition as to the date the collision occurred. Savannah, Florida Western Ry. v. Barber, 71 Ga. 644 (2a); Napier v. Strong, 19 Ga. App. 401, 406 ( 91 S.E. 579); Franklin Savings Loan Co. v. Branan, 54 Ga. App. 363 ( 188 S.E. 67).
The evidence was sufficient to support the verdict and the general grounds are without merit.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.