McCoy Grocery Company v. Travelers Indemnity Company

114 S.E.2d 924, 101 Ga. App. 638, 1960 Ga. App. LEXIS 970

• Court: Court of Appeals of Georgia
• Decided: April 27, 1960
• Docket: 38119
• Status: Published

Opinions

Nichols, Judge.

1. “ ‘When a court passes upon a motion for a non-suit it decides only one question, that is, do the allegations and the proof correspond? In sustaining such a motion the court does not hold that the plaintiff is not entitled, under the law, to recover on the facts alleged; neither does the overruling of the motion decide that the plaintiff is entitled under the law to recover. The right to recover under the facts alleged is not involved in the decision of such a motion. If a plaintiff “proves his case as laid,” he is entitled to prevail as against a nonsuit; but it by means follows from this that he is entitled to recover on the facts “as laid.” Kelly v. Strouse, 116 Ga. 872, 883 (43 S. E. 280). See also Flewellen v. Flewellen, 114 Ga. 403 (40 S. E. 301); Barge v. Robinson, 115 Ga. 41 (41 S. E. 258); McCandless v. Conley, 115 Ga. 48 (41 S. E. 256).” Gray v. Schlapp, 92 Ga. App. 261 (88 S. E. 2d 536).

2. The plaintiff in this case sought to recover, under a policy of burglary insurance, a copy of which is attached to the petition, issued by the defendant insurance company for “the felonious abstraction of insured property from within a vault or safe described in the declarations and located within the premises by a person making felonious entiy into such vault or such safe and any vault containing the safe, when all doors thereof are duly closed and locked by all combination locks thereon, provided such entry shall be made by actual force and violence, of which force and violence there are visible marks made by tools, explosives . . . upon the exterior of all of said doors of such vault or safe ... if entry is made through such doors . . .” (Emphasis ours). The plaintiff introduced evidence to show there had been a felonious abstraction of funds from within a safe located within the plaintiff’s premises by some person making felonious entry into such safe; that such felonious entry into said safe was made when all the doors thereof were duly closed and locked by all combination locks thereon-, that there were visible marks of actual force and violence made by tools of some description and covered by the policy upon the exterior door to the safe, which door was the only door, under the evidence, upon which there was a combination lock, as contemplated by the policy.

Decided April 27, 1960 Rehearing denied May 12, 1960. James H. Fort,-for plaintiff in error. Hatcher, Smith, Stubbs •& Rothschild, Albert W. Stubbs, contra.

3. Whether or not there was any evidence of the insured’s liability for the physical damage done to the building in the alleged wrongful entry to same, and for which the plaintiff seeks to recover under the policy, need not be considered here since there was sufficient evidence to go to the jury on the question of the defendant’s liability for the money allegedly stolen from the safe.

Judgment reversed.

Gardner, P. J., Townsend, Carlisle and Frankum, JJ., concur. Felton, C. J., and Bell, J., dissent.