Thurmond v. Spoon

189 S.E.2d 92, 125 Ga. App. 811, 1972 Ga. App. LEXIS 1480

• Court: Court of Appeals of Georgia
• Decided: March 9, 1972
• Docket: 46526
• Status: Published

Opinions

Quillian, Judge.

Thomas Motley, as an employee of the City of Atlanta, was insured. According to his age and rate of employment, insurance upon his life at his death was $12,000. He died June 25, 1969. Daisy Thurmond, filed a claim against Prudential Insurance Company to recover the proceeds of the insurance policy in the Civil Court of Fulton County. Mae Belle Spoon, also filed a claim against Prudential in Fulton Superior Court to recover the proceeds of the same insurance policy. Prudential in its answer and interpleader asked that the proceeds of the insurance be paid into the registry of the court, and that the claimants establish their respective rights to the proceeds of the insurance.

The case was tried and after hearing the evidence, the court directed a verdict in favor of Mae Belle Spoon. Daisy Thurmond filed an appeal and the case is here for review. Held:

1. The appellant’s second enumeration of error contends that the court erred in overruling the objection to a witness’ testimony that Thomas Motley "signed the card which changed the beneficiary” to Mae Belle Spoon. The witness was an agent of Prudential who carried the change of beneficiary card to Motley. He testified: that he explained to him what the card was for and he appeared to understand what he was doing; that he observed him sign the card by making his mark. The admission of the evidence was not error.

Submitted September 14, 1971 Decided March 9, 1972 Rehearing denied March 29, 1972

The only objection to this evidence, made at the time of the trial, was that it was inadmissible because it was an attempt to create an insurance policy orally. This objection was without merit.

2. Enumeration of error number 1 complains that the trial judge erred in allowing a witness to testify that a notation on the change of beneficiary card meant there had "been a valid change of beneficiary.” Counsel objected on the grounds that "it is not testimony of fact — it is harmful and prejudicial to us, eliciting there facts from her where they were not asked for by counsel in this case.” The witness’ testimony was in answer to a question propounded by the court. Furthermore, there was a policy certificate introduced in evidence which provided that the change of beneficiary took place on the date the application was signed. The enumeration of error is without merit.

3. Mr. Hartupee, Prudential’s agent, testified: that he carried the change of beneficiary card to Thomas Motley; that he explained to Motley what it was for and that he appeared to understand what he was doing; that he observed Motley sign the card by making his mark. Mr. Hartupee’s testimony was uncontradicted and it together with the documentary evidence demanded a verdict. National Council &c. v. Van Giesen, 20 Ga. App. 211 (5) (92 SE 1022); Carmichael Tile Co. v. Summitville Tiles, 103 Ga. App. 346 (118 SE2d 869); Cook County v. Thornhill Wagon Co., 189 Ga. 360 (3) (5 SE2d 881). See Civil Practice Act § 50 (a) (Code Ann. § 81A-150; Ga. L. 1966, pp. 609, 656; 1967, pp. 226, 237, 246, 248).

4. The remaining enumerations of error are without merit.

Judgment affirmed.

Bell, C. J., Jordan, P. J., Hall, P. J., Eberhardt, Pannell, Been and Clark, JJ., concur. Evans, J., dissents. Stone & Stone, Noah J. Stone, for appellant. Frank S. French, Guy R. Dunn, for appellees.