Swain v. Macon Fire Insurance , 102 Ga. 96 ( 1897 )

Lumpkin, P. J.

1. The ruling announced in the first headnote is directly supported by the decision of this court in Carrugi v. Atlantic Fire Ins. Co., 40 Ga. 185, and City Fire Ins. Co. v. Carrugi, 41 Ga. 660, both of which are cited approvingly in Greenwich Ins. Co. v. Sabotnick, 91 Ga. 719. In this connection, see, also, Clay v. Phœnix Ins. Co., 97 Ga. 44; Phenix Ins. Co. v. Searles, 100 Ga. 97.

2. The evidence was conflicting upon the question whether or not the agent of the insurance company had notice of the prior insurance at the time he issued the policy sued upon in the present case. The solution of this conflict was a matter for the jury, and not for the presiding judge. Consequently, directing a verdict in the defendant’s favor was erroneous.

3. By a cross-bill of exceptions, the defendant in error undertook to present for determination by this court the question whether the granting of a nonsuit was proper subject-matter for a ground of a motion for a new trial. It does not, however, appear that the trial judge granted a nonsuit. The action. was for two separate and distinct claims arising upon the same insurance policy; one for a loss alleged to have been occasioned by the burning of a house, and the other for a loss resulting from the destruction by fire of the furniture in that house contained. The judge granted an order declaring “that the plaintiff be and is nonsuit for the claim of loss upon the house set forth in the policy,” but allowed the trial to proceed upon the other branch of the case. We are not aware of any precedent for the granting of such an order. In our opinion, the court can not grant a partial nonsuit. It may strike from the declaration irrelevant matter, or allegations setting up no cause of action; or, by proper instructions to the jury, cut the plaintiff off from recovering upon a claim embraced in his petition upon which, under the law and evidence, there could be no lawful recovery in his favor. But granting a nonsuit as to a portion of the plaintiff’s case is a thing unknown to our practice. This court, in Hudson v. Ga. Pac. Ry. Co., 85 Ga. 208, 208, while declining to decide whether or not the granting of a nonsuit could properly be made the ground of a motion for a new trial, expressly stated that so doing was not the proper practice, but that “a motion to reinstate the case should be made, or a bill of exceptions to this court taken.” Be this as it may, we are of the opinion that the order passed in the case at bar should be treated, not as the granting of a nonsuit, but merely as an erroneous ruling of which complaint could properly be made in a motion for a new trial.

Judgment on main bill of exceptions reversed; on cross-bill, affirmed.

All the .Justices concurring.