Boston Insurance Co. v. Harmon , 66 Ga. App. 383 ( 1941 )

1. While an insufficient or defective briefing of evidence, in violation of the Code, § 70-305, is not ground for dismissing a writ of error (Fleming v. Roberts, 114 Ga. 634, 40 S.E. 792; McKenzie Trust Co. v. Bullard, 35 Ga. App. 19, 22, 132 S.E. 125; Crumbley v. Brook, 135 Ga. 723, 70 S.E. 655; Shaine v. Block, 28 Ga. App. 329, 111 S.E. 79; Walker v. Smith, 31 Ga. App. 205, 121 S.E. 692; Progressive Life Insurance Co. v. Wallace, 61 Ga. App. 245, 247, 6 S.E.2d 398; Jones v. Knightstown Body Co., 52 Ga. App. 667, 184 S.E. 427), as the provisions of this section are for the benefit of the court and not of parties litigant (Hargett v. Muscogee Bank, 32 Ga. App. 701, 124 S.E. 541; Progressive Life Insurance Co. v. Wallace, supra; Hulsey v. Harrington, 57 Ga. App. 479, 482, 195 S.E. 901), nevertheless the court, when there has been no bona fide attempt (Moore v. Medlock, 113 Ga. 259, 38 S.E. 825; Rogers v. National Cash Register Co., 11 Ga. App. 487, 75 S.E. 828; Clark v. Adams, 29 Ga. App. 496, 116 S.E. 122; Richards v. Mabry, 39 Ga. App. 707, 148 S.E. 289; Allen v. E. Mason Roberts Enterprises, 181 Ga. 99, 100, 181 S.E. 578) to brief the evidence as required by law, will not pass on assignments of error requiring its consideration (Dickey v. Georgia Alabama Railway Co., 99 Ga. 244, 25 S.E. 410; Equitable Mortgage Co. v. Bell, 115 Ga. 651, 42 S.E. 82; Atlanta West Point Railroad Co. v. Upshaw, 115 Ga. 688, 42 S.E. 82; Lane v. Williams, 118 Ga. 167, 44 S.E. 993; McComb v. Hines, 123 Ga. 246, 51 S.E. 300; Blount-Hudson Chevrolet Co. v. Blount, 55 Ga. App. 864 (191 S.E. 875); Bunn v. Atlantic Coast Line Railroad Co., 18 Ga. App. 66, 88 S.E. 798; Culver v. Silver, 113 Ga. 1142, 39 S.E. 472); and unless there are assignments of error for review requiring no consideration of the evidence (Fleming v. Roberts, McComb v. Hines, supra; Jones v. Hubbell, 152 Ga. 496, 110 S.E. 237; Scott v. Davis, 22 Ga. App. 32, 95 S.E. 332; Crumbley v. Brook, supra; Whitaker v. State, 138 Ga. 139, 75 S.E. 254; Augusta-Aiken Ry. c. Cor. v. Andrews, 20 Ga. App. 789, 791, 93 S.E. 543), this court will, without reviewing the denial of a new trial (O'Neal v. Murphy, 147 Ga. 21, 92 S.E. 524), assume that the judgment of the trial court was correct (Ingram v. Clarke, 96 Ga. 777, 22 S.E. 334; Ryan v. Kingsbery, 88 Ga. 361, 14 S.E. 596; Hart v. Respess, 89 Ga. 87, 97, 14 S.E. 910; Southern Banking Trust Co. v. Farmers Merchants Bank, 99 Ga. 635, 25 S.E. 831; Progressive Life Insurance Co. v. Wallace, supra), and affirm the judgment (Crump v. Farmer, 154 Ga. 711, 115 S.E. 71; American National Insurance Co. v. Lee, 145 Ga. 797, 89 S.E. 836; Roberts v. Rowell, 152 Ga. 97, 108 S.E. 466; Jones v. Hubbell, 152 Ga. 496, 110 S.E. 237; McComb v. Hines, supra; Carlisle v. Ray, 133 Ga. 223, 65 S.E. 408).

2. The requirements of the Code, § 70-305, are twofold: first, the testimony must be properly briefed (Progressive Life Insurance Co. v. Wallace, supra; Culver v. Silver, supra; Price v. High, 108 Ga. 145, 33 S.E. 956; Rogers v. National Cash Register Co., supra; Pope v. State Grand Lodge, 45 Ga. App. 206, 164 S.E. 99; Blount-Hudson Chevrolet Co. v. Blount, supra); and second, the documentary evidence must be properly briefed or abstracted (Moore v. Medlock, supra; Ansley v. Davidson, 110 Ga. 279, 34 S.E. 611; Whitehead v. Mundy, 91 Ga. 198, 17 S.E. 287; Ryan v. Kingsbery, supra; Harris v. McArthur, 90 Ga. 216, 15 S.E. 758; Rucker v. Tabor, 1 Ga. App. 231, 57 S.E. 967; Wall v. Mercer, 119 Ga. 346, 46 S.E. 420; Witt Shoe Co. v. Bordeaux, 99 Ga. 144, 25 S.E. 38; Durden v. DeLoach, 9 Ga. App. 396, 71 S.E. 493). A compliance with one requirement will not necessarily save against a non-compliance with the other.

3. Even though the testimony be properly briefed (McPherson v. Chandler, 137 Ga. 129 (4) 72 S.E. 948; Harris v. McArthur, supra), there yet must be a bona fide effort with reference to documentary evidence to eliminate, unless the issues involved require the inclusion of the entire documents (City of Macon v. Ries, 180 Ga. 371 (2), 179 S.E. 529), the formal and irrelevant parts (Ryan v. Kingsbery, supra), and include only those parts which were considered at the trial (Crawford v. Roney, 126 Ga. 763 (4), 55 S.E. 499), and any further abstracts of the documents as would indicate their nature and legal effect (Whelchel v. Duckett, 91 Ga. 132, 16 S.E. 643), the ultimate requirement being that only those portions of the properly identified documentary evidence be briefed or abstracted which relate directly or indirectly, and are material, to the issues as presented by the assignments of error. Accordingly, briefs of evidence, though properly prepared as to oral testimony (Oconee Oil Refining Co. v. Planters Oil Co., 6 Ga. App. 413, 65 S.E. 144), are yet insufficiently briefed, unless the brief is mainly of testimony properly briefed (Jones v. Knightstown Body Co., 52 Ga. App. 667, 184 S.E. 427), where the documents are copied verbatim and included in the briefs, unless necessarily required as a whole (City of Macon v. Ries, supra), and assignments of error requiring a review of such evidence will not be considered. Whitten v. Bacon, 165 Ga. 151 (140 S.E. 287); Henslee v. Harper, 148 Ga. 621 (97 S.E. 667); Harris v. McArthur, supra; Ingram v. Clarke, supra; Southern Banking Trust Co., v. Farmers Merchants Bank, supra; Carlisle v. Ray, supra; Weathers v. Paga Mining Co., 147 Ga. 463, 464 (94 S.E. 579); Whitehead v. Mundy, supra; Wall v. Mercer, supra). In such instance the judgment will be affirmed.

4. The ruling in this case, however, is not authority to the effect that in all instances of failure to properly brief either the testimony or the documentary evidence, when the other has been adequately briefed, the court will not consider any assignment of error requiring reference to the brief of evidence. It is conceivable that the quantum of testimony or of the documentary evidence, improperly briefed, may be so inconsequential when compared with the other which comprises the vast bulk of the evidence and has been properly briefed, that the court will be saved, but at its option, from the application of the rule, and may nevertheless consider the assignments of error.

DECIDED OCTOBER 6, 1941. ADHERED TO ON REHEARING DECEMBER 16, 19, 1941. J. C. Harmon, as the insured, and Gunn-Drake Motors Inc., as the loss payee, brought an action against Boston Insurance Company, under a policy insuring against fire and other named hazards, to recover the principal sum of $157.50 as the alleged total loss by fire of an automobile. Following the introduction of testimony of only one witness and of certain documents consisting of the policy, the retention-title contract, two notes, one for $50 and the other for $107.50, secured thereby, and the fifth allegation of the petition alleging demand for payment together with the answer admitting demand, the court directed a verdict for the plaintiffs. The defendant excepted.

As succinctly stated in the brief of the plaintiff in error, the assignments of error present the following issues: "Plaintiff in error contends that the verdict and judgment is contrary to the evidence, without evidence to support it; it is decidedly and strongly against the weight of the evidence and contrary to law and the principles of justice and equity. The policy sued on required sole and unconditional lawful ownership in the insured, J. C. Harmon, there being no proof of ownership, nor was there any proof of the value of the property claimed to have been destroyed on the date of the loss. Plaintiff in error contends that the direction of said verdict for the plaintiffs was error and hurtful and harmful to it because of the facts hereinabove set forth. Said policy sued on further provided that all claims for loss and damage should be forfeited by the failure of the insured to furnish sworn proofs of loss within sixty days after the loss. Plaintiff in error shows that it affirmatively appears from the record that such requirement had not been complied with, that no proofs had been filed, nor was there any evidence tending to show that there was a waiver of proofs of loss, nor was there any evidence on the part of the plaintiffs as to why proofs were not filed. Plaintiff in error contends that in the light of these facts the court erred in directing a verdict for the plaintiffs, and error is assigned thereon."

For a consideration of these assignments of error reference must be had to the brief of evidence, and there are no assignments not requiring such reference. The oral testimony was as follows: "On or about January 27th, 1940, I was employed by Gunn-Drake Motors. I checked up on an automobile sold to J. C. Harmon which is described in retention-title contract held by Gunn-Drake Motors. The motor number of the automobile was K6324156. On the date mentioned I found this automobile had been burned and that it would be called a total loss." This testimony was adequately briefed. The documentary evidence, however, comprised twenty pages of typewritten space, were verbatim copies of the documents, and consisted of about eighteen pages of foreign, irrelevant, and immaterial matter, resulting only in surplusage and a flagrant violation of Code § 70-305. We illustrate with excerpts, which have no relevancy for proper identification of the documents or materiality to the issues presented, but which go only to the violation of the rule. First as to the policy, we quote: "Breakage of glass and damages caused by tornado, cyclone, windstorm, hail, falling aircraft or parts thereof and damage from theft, earthquake, explosion, riot, riot attending a strike, insurrection or civil commotion, shall not be deemed a loss caused by collision or upset." From the retention-title contract, we quote: "To further secure payment of this obligation I hereby mortgage and convey to the Gunn-Drake Motors Inc., the following property: (none)." As to the notes, we quote: "Each of us, whether principal, security, guarantor, endorser or other party thereto, hereby severally waive and renounce each for himself and family all right of homestead, short homestead or other exemption rights, either of us or the family of either of us, may have under or by virtue of the constitution or laws of Georgia, or any other State, or the United States, as against this debt or any renewal thereof."

Under the foregoing rulings, there being no assignment of error which does not require for determination a reference to the brief of evidence, the judgment must be

Affirmed. Broyles, C. J., concurs.