Merritt v. Cotton States Life Insurance , 55 Ga. 103 ( 1875 )

Warner, Chief Justice.

This was an action brought by the plaintiff against the defendant on a life insurance policy. On the trial of the case, the jury, under the charge of the court, found a verdict in favor of the plaintiff for $2,734 52, with twenty-five per cent, damages on that amount, and $1,000 00 for attorney’s fee. A motion -was made for a new trial on the several grounds stated therein, which was granted by the court on eight of the grounds taken in the motion, and the defendant insists that the court should have granted the new trial on several other grounds stated in the motion, which the court overruled.

1. When the motion for a new trial came on to be heard, the plaintiff made a motion to dismiss it, on the ground that the motion for a new trial was not made at the term of the court at which the trial was had, but was made in vacation. It appears from the record that at the term of the court at which the trial was had, the following order was passed: “Upon consent of counsel in open court, ordered that defendant’s counsel have ten days from the adjournment of this court to make out, perfect, and have filed in the clerk’s office, an application for a new trial with original brief of evidence ordered to be filed. Such motion to be heard at chambers by the judge, as if in term, within twenty days, with the right of exceptions to both parties. Plaintiff also has the same time and terms, with like right of exceptions.” The court adjourned on the 26th day of January, 1875. On the 1st day of February thereafter, the judge, at chambers, granted a rule nisi for a new trial, and suspended the verdict and judgment until further order, and set the case for a hearing on the 5th of February. On the 2d of February the plaintiff acknowledged service on the defendant’s motion for a new trial with a protest that a motion for a new trial and supersedeas could not be made, filed, and ordered in vacation, and agreed to a brief of the evidence with a similar protest. The judge overruled the motion to dismiss the motion for a new trial, and the plaintiff excepted, and assigned the same as error. There being only two judges presiding, and being divided in opinion as to the plaintiff’s motion to dismiss the defendant’s motion for a new trial, the judgment of the court below on the question of dismissal stands affirmed.

2. There was no error in the ruling of the court at the trial as to its jurisdiction of the defendant in the county of Sumter under the evidence in the record, as provided by the 3408th and 3409th sections of the Code. The constitutional power of the general assembly to enact these two sections of the Code, was recognized and settled by (his court in Davis vs. The Central Railroad and Banking Company, 17 Georgia Reports, 323.

3. There was no error in overruling the defendant’s motion for a non-suit on either of the three grounds taken in the motion therefor. There being no plea of ne unques administrator, the plaintiff was not required to prove that he was administrator at the trial.

4. The absolute refusal of the defendant to pay, was a waiver of the preliminaries required by the policy as to time of payment: Code, section 2813. The manner and circumstances of the death of the insured under the evidence, was a question to be submitted to the jury.

5. There was no error in the charge of the court that if the plaintiff had obtained a paid up policy, he was as much bound by the terms and conditions of the original policy, as if he had not forfeited his right to the remainder of the policy.

6. If the insured died by his own hand, then the policy is void, unless it be clearly shown that at the time the act was done, his mental condition was such as to render him incapable of distinguishing right from wrong to such an extent as to render him legally and morally irresponsible for his acts, and conduct. The fact that the insured committed suicide is not of itself evidence of insanity.

7. In view of the evidence contained in’the record, and of the law applicable thereto, we will not interfere to control the discretion of the court in granting a new trial in this case, the more especially as there is no evidence which would have authorized the jury to find twenty-five per cent, damages on the amount recovered, and $1,000 00 for attorney’s fees on the ground that the refusal of the defendant to pay the plaintiff’s claim was in bad faith, as provided by the 2850th section of the Code.

Let the judgment.of the court below be affirmed.