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AMERICAN CASUALTY COMPANY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; and vice versa.
38980.
38981.
Complaint. Fulton Civil Court. Before Judge Camp.
EBERHARDT, Judge.
1. Where the evidence is conflicting, that view of it will be taken which is most favorable to the prevailing party.
2. Though evidence may have been admitted that was objectionable, if other similar evidence is admitted without objection the illegal admission is not a basis for the granting of a new trial.
R. C. Pierce and H. R. Beale Roofing Co., Inc., carried two public liability policies on its motor vehicles with State Farm Mutual Insurance Co. and decided to cancel that coverage and place it with American Casualty Co. Request for cancellation was made to the agent of State Farm, pursuant to which one of the policies was canceled as of June 14, 1957, and the other as of June 24, 1957. American Casualty Co. issued its policy, first effective June 24, 1957, and then endorsed to be effective from June 16, 1957. On June 21, 1957, one of the insured vehicles collided with the vehicle of another party and caused the occupants thereof to be injured. It developed that the vehicle so involved was listed as one of those covered in the policy of State Farm that was canceled as of June 24, so that apparently coverage was afforded thereon at the time of the collision both by it and by American Casualty.
The request for cancellation of both policies with State Farm had been made by the insured at the same time, and the agent of State Farm reported to the company that there had been a typographical error in the effective date, as contained in the request that he had prepared and forwarded, and accordingly State Farm issued a correcting cancellation and a check for the additional unearned premium and forwarded it to the insured, with a letter of explanation.
American Casualty, without the consent of and participation of State Farm, proceeded to effect a settlement with the injured parties, some of whom were minors, without any court proceedings in connection therewith, and thereafter made demand upon State Farm that it contribute proportionately for the amount of its coverage. State Farm declined to make contribution, and American Casualty sued in the Civil Court of Fulton County. State Farm demurred, both generally and specially to the petition, and after the overruling thereof the case proceeded to trial before the judge without a jury. After hearing the evidence judgment was entered for the defendant, State Farm. American Casualty filed its motion for new trial, which was later amended, and upon the overruling thereof brought the cause here for review. State Farm seeks a review of the rulings on demurrer by way of cross-bill of exceptions.
The only assignment of error in the main bill of exceptions is as to the overruling of the motion for new trial as amended. The motion contained the usual general grounds, and in addition a special ground complaining of the admission of a copy of a letter addressed to the insured dated July 26, 1957, relative to the correcting of the cancellation date on the policy involved and the enclosure of a check for the additional unearned premium.
1. The questions as to whether there was, at the time of the collision on June 21, 1957, coverage afforded to the insured under the policy of American Casualty, which appeared to have been amended at some time after issuance to extend the coverage back from June 24 to June 16; of whether there was coverage afforded under the policy of State Farm by reason of the typographical error in transmitting to the home office the request of the insured for cancellation effective June 14; of whether there was liability to the occupants of the vehicle of a third party, and if so, whether American Casualty had taken steps to terminate such liability; and of whether, in effecting a settlement with the occupants of the other vehicle American Casualty had acted in such a manner as to render it a volunteer, were such that could be resolved only from a consideration of the evidence submitted, some of which was conflicting. The trial court, by the entry of its judgment for the defendant, resolved those questions against the plaintiff.
"As the case was submitted to the judge for determination of all issues without a jury, wherever it is necessary to consider any conflict in the evidence in the record, that view of it must be taken which is most favorable to the prevailing parties." City of McRae v. Folsom, 191 Ga. 272, 276 (11 SE2d 900). There is no merit in the general grounds.
2. A reading of the brief of evidence in this case discloses that the copy of the letter, admission of which into evidence is assigned as error, was read to the court by a witness for the plaintiff while on cross-examination, without any objection, at a time prior to the offering and admission of the copy itself into evidence. Thus there is no merit in this ground of the amended motion. Arcady Farms Milling Co. v. Betts, 93 Ga. App. 255 (91 SE2d 289); G. Bernd Co. v. Rahn, 94 Ga. App. 713, 722 (96 SE2d 185).
"Furthermore, in a proceeding in which the court is both judge and jury, it must be presumed that the judge has sifted the wheat from the chaff and selected the legal testimony from that which is illegal and incompetent." Bailey v. Holmes, 163 Ga. 272, 275 (136 SE 60). And see Loftis v. Allen Plumbing Co., 57 Ga. App. 847, 849 (197 SE 45).
3. The above rulings make unnecessary any consideration of the cross-bill of exceptions, and it is accordingly dismissed.
Powell, Goldstein, Frazer & Murphy, Edward E. Dorsey, C. B. Rogers, contra.
Smith, Field, Ringel, Martin & Carr, Sam F. Lowe, Jr., Robert C. Field, for plaintiff in error.
DECIDED SEPTEMBER 7, 1961.
Friday May 22 23:17 EDT


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