McClelland v. Northwestern Fire & Marine Ins.

Court of Appeals of Georgia

McClelland v. Northwestern Fire & Marine Ins.

86 S.E.2d 729, 91 Ga. App. 640, 1955 Ga. App. LEXIS 829

CourtCourt of Appeals of Georgia

DecidedMarch 17, 1955

Docket35478

StatusPublished

Cited by9 cases

This text of 86 S.E.2d 729 (McClelland v. Northwestern Fire & Marine Ins.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McClelland v. Northwestern Fire & Marine Ins., 86 S.E.2d 729, 91 Ga. App. 640, 1955 Ga. App. LEXIS 829 (Ga. Ct. App. 1955).

Pincite

Opinions

Nichols, J.

After the conclusion of the evidence, the defendant tendered an amendment to its answer in which it was alleged in paragraph 1 that the policy provided that the defendant would not be liable for any damage caused by a mechanical failure unless the mechanical failure itself was caused by one or more of the perils covered by the policy, and then alleged in paragraph 2 that the cause of the car going down the driveway was either the failure of the brakes to properly hold the car, or the failure of the plaintiff to properly apply the brakes. This amendment was allowed by the court over the plaintiff’s objection that it was not germane to and not supported by any evidence, and was prejudicial because it injected conjectural matter, inferences and conclusions which could not be drawn from any of the evidence. In special ground 1 of the motion for new trial, complaint is made that, because of the objections urged, the court erred in allowing the amendment. Since the insurance contract was in evidence and contained the provisions mentioned in the first paragraph of the amendment, there is no merit in the objection made to this paragraph. Hyer v. C. E. Holmes & Co., 12 Ga. App. 837, 848 (79 S. E. 58). In the second paragraph, the defendant alleged what it conceived [643]*643to be the cause of the descent of the car. Since this court will take judicial cognizance of the fact that efficient and effective brakes will hold a motor vehicle on an incline unless some external force be applied, the allegation in paragraph 2 of the amendment was authorized under this principle of law. The presumption would be that, if the brakes were efficient and would hold the car on the incline unless some external force was exerted, its descent was caused either by the wind or because the brakes were not properly set. Accordingly, the defendant had the right to contend that either the brakes failed or were improperly set by the plaintiff. See Georgia Highway Express v. Sturkie, 62 Ga. App. 741, 746 (9 S. E. 2d 683); Scoggins v. Peggy Ann of Ga., 87 Ga. App. 19, 23 (73 S. E. 2d 79); Wright Contracting Co. v. Waller, 89 Ga. App. 827, 833 (81 S. E. 2d 541).

The remaining grounds of the motion for new trial complain of several excerpts from the charge of the court, which involve objections that are controlled adversely to the movant by the ruling in the preceding division of this opinion; and also an objection that in some of the excerpts the court expressed an opinion on the facts of the case, which objection is also without merit.

The evidence authorized the verdict for the defendant.

Judgment affirmed.

Quillian, J., concurs. Felton, C. J., concurs specially.

Free access — add to your briefcase to read the full text and ask questions with AI

Nichols, J.

After the conclusion of the evidence, the defendant tendered an amendment to its answer in which it was alleged in paragraph 1 that the policy provided that the defendant would not be liable for any damage caused by a mechanical failure unless the mechanical failure itself was caused by one or more of the perils covered by the policy, and then alleged in paragraph 2 that the cause of the car going down the driveway was either the failure of the brakes to properly hold the car, or the failure of the plaintiff to properly apply the brakes. This amendment was allowed by the court over the plaintiff’s objection that it was not germane to and not supported by any evidence, and was prejudicial because it injected conjectural matter, inferences and conclusions which could not be drawn from any of the evidence. In special ground 1 of the motion for new trial, complaint is made that, because of the objections urged, the court erred in allowing the amendment. Since the insurance contract was in evidence and contained the provisions mentioned in the first paragraph of the amendment, there is no merit in the objection made to this paragraph. Hyer v. C. E. Holmes & Co., 12 Ga. App. 837, 848 (79 S. E. 58). In the second paragraph, the defendant alleged what it conceived [643]*643to be the cause of the descent of the car. Since this court will take judicial cognizance of the fact that efficient and effective brakes will hold a motor vehicle on an incline unless some external force be applied, the allegation in paragraph 2 of the amendment was authorized under this principle of law. The presumption would be that, if the brakes were efficient and would hold the car on the incline unless some external force was exerted, its descent was caused either by the wind or because the brakes were not properly set. Accordingly, the defendant had the right to contend that either the brakes failed or were improperly set by the plaintiff. See Georgia Highway Express v. Sturkie, 62 Ga. App. 741, 746 (9 S. E. 2d 683); Scoggins v. Peggy Ann of Ga., 87 Ga. App. 19, 23 (73 S. E. 2d 79); Wright Contracting Co. v. Waller, 89 Ga. App. 827, 833 (81 S. E. 2d 541).

The remaining grounds of the motion for new trial complain of several excerpts from the charge of the court, which involve objections that are controlled adversely to the movant by the ruling in the preceding division of this opinion; and also an objection that in some of the excerpts the court expressed an opinion on the facts of the case, which objection is also without merit.

The evidence authorized the verdict for the defendant.

Judgment affirmed.

Quillian, J., concurs. Felton, C. J., concurs specially.

Cite This Page — Counsel Stack

Bluebook (online)

86 S.E.2d 729, 91 Ga. App. 640, 1955 Ga. App. LEXIS 829, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclelland-v-northwestern-fire-marine-ins-gactapp-1955.

Opinions

Related

Cite This Page — Counsel Stack