Opinion
36238.
DECIDED OCTOBER 23, 1956. REHEARING DENIED DECEMBER 14, 1956.
Action on open account; directed verdict. Before Judge Lilly. Colquitt Superior Court. April 21, 1956.
Bob Humphries, H. C. Eberhardt, Franklin, Eberhardt, Barham Coleman, for plaintiff in error.
Horkan Peters, Geo. A. Horkan, Jr., contra.
The trial judge erred in granting the plaintiff's motion for a directed verdict.
DECIDED OCTOBER 23, 1956 — REHEARING DENIED DECEMBER 14, 1956.
Moultrie Insurance Agency filed in Colquitt Superior Court a suit upon an open account against Consolidated Telephone Company. The petition alleged in substance that the defendant was indebted to plaintiff in the amount of $2,111.61 on account, as shown by a bill of particulars attached to the petition. The defendant demurred generally and specially to the petition. The court overruled all except ground 3 of the demurrer. The answer denied that defendant was indebted to plaintiff in any amount.
Ground 3 of the demurrer was sustained. It objected to all items of the account sued upon bearing a date prior to December 17, 1950. This ruling was not excepted to, and the plaintiff, in compliance with the ruling, amended the petition by reducing the amount sued for to $1,011.61, which was the exact amount of items of indebtedness accruing up to January 1, 1951, minus the payments made on the account up until that time. Thereafter the suit proceeded for the sum of $1,011.61.
On the trial the evidence disclosed that the account arose out of, and was for, premiums for insurance furnished to the defendant; that the defendant requested the plaintiff to procure for it certain insurance policies. These policies were known as "Schedule liability" policies. They were not written by the plaintiff but were delivered by it to the defendant on behalf of the United States Fidelity Guaranty Company.
The premium on each of these policies was to be determined from an audit made at the end of the policy period and was based upon the insured's payroll. The United States Fidelity Guaranty Company sent an agent at the end of the policy period and made the audit for determining the amount of the premium. Said United States Fidelity Guaranty Company notified the plaintiff of the amount of premium due; the plaintiff paid the premium and billed the defendant for that amount. The audits were retained by the United States Fidelity Guaranty Company and were not sent to either the plaintiff or the defendant, nor were they introduced in evidence. These audits show the correct debits and credits constituting the amount sued upon. No witness testified that the audits were correct. Mrs. Oscar Kincaid, witness for the plaintiff, testified that the ledger sheet showed the correct debits and credits of defendant's account with the plaintiff; that none of an amount of $1,011.61 so shown against the defendant had been paid, though all of same was due; that she did not make the audit and did not know who did make it; and that she could not testify that the audit was correct. On cross-examination Mrs. Kincaid testified: "I did not make the entries of charges on those sheets. I have reason to believe they are correct, but cannot swear that they are correct. My husband handled Mr. Kirk's account for years before he died. He didn't make the entries either. I was just going by the fact that Mr. Kirk paid part on them. Mr. Halpert or someone who was working with him in the agency made these entries. I was not in the office at the time. They were not made under my supervision or direction. The Moultrie Insurance Agency was a partnership engaged in the general insurance business. It was the agent for the United States Fidelity Guaranty Company. That's the only company whose policies are on this schedule since December 17, 1950. As agent for United States Fidelity Guaranty Company, the Moultrie Insurance Agency solicited and wrote insurance contracts. United States Fidelity Guaranty Company was to receive a premium for the protection afforded under the contract. All the contracts of insurance provide that the insurer get the premium. These items listed on that bill of particulars or ledger sheet, about which I testified, are items for premiums under those contracts. You see the insurance agents get so much money from the person whom they are insuring and send a portion of that to the company and keep a portion for themselves. They are entitled to some commission out of the premium. But this is the total amount that he owed. It is the total amount that the contract says he was to pay to the agency for premium. All of these items are insurance premiums. There's nothing else in this suit sought to be recovered for except insurance premiums. The Moultrie Insurance Agency paid these premiums to the Moultrie [United States] Fidelity Guaranty Company for the insured, but the Moultrie Insurance Agency did not take any assignment from the United States Fidelity Guaranty Company for the claim against the Consolidated Telephone Company for premiums which were paid for these policies." The account sued upon was not introduced in evidence.
At the conclusion of the plaintiff's evidence the defendant's counsel made a motion for a nonsuit, and thereafter for a judgment notwithstanding the verdict, which were denied. The plaintiff then made a motion for a directed verdict which was granted. The defendant excepted to the denial of its motion for a judgment notwithstanding the verdict and to the grant of the directed verdict for plaintiff.
For convenience we refer to Moultrie Insurance Agency as plaintiff and Consolidated Telephone Company as defendant, they having occupied these respective positions in the trial court.
The grounds of the demurrer to the petition, other than that referred to in the foregoing statement of facts, were: "1. Defendant demurs to and moves to dismiss plaintiff's petition because it sets forth no cause of action against this defendant. 2. Defendant demurs specially to the petition and to the bill of particulars thereto attached in the following respects and to the following extent, and upon the following grounds, to wit: (a) That portion of the bill of particulars which reads: `5-26-51 Z85630 Audit adjustment 1/1/50 to 1/1/51 $344.47' for the reason that it does not (i) set forth, either in the petition or in the bill of particulars, what the `Audit adjustment' consists of, or (ii) what the particular items of the `Audit adjustment' consist of, or what they are, or (iii) who made the alleged `Audit adjustment,' or (iv) by whose authority any `Audit adjustment' was made, or (v) whose or what audit the alleged adjustment was made on, or why it was made, and (vi) because, without a particularization of this item in the bill of particulars, this defendant is unable to know or to have the means by which it may prepare its defense thereto; (b) that portion of the bill of particulars which reads: `5-26-51 USFG Audit adjustment 1/1/50 to 1/1/51 $42.10' upon the same grounds and for the same reasons as set forth in subparagraph (a) above."
The first ground of the demurrer was in the nature of a general demurrer, and being without merit was properly overruled. The insistence of the defendant that the payments alleged to have been made by the plaintiff on behalf of the defendant were voluntary payments is incorrect, for, according to the averments of the petition, they were not voluntary but were payments of insurance premiums made by the plaintiff on insurance for the benefit of and at the behest of the defendant who was its customer.
The first item of the bill of particulars attacked by the special demurrer did not show for what the defendant was allegedly indebted to the plaintiff, and was subject to the demurrant's criticism that it was lacking in particularity.
The second item demurred to supplied this deficiency appearing in the first item by showing that it was for the premium on a policy in a named insurance company. Under the holding in Henry Darling Inc. v. Harvey-Given Co., 40 Ga. App. 771 ( 151 S.E. 518), it was sufficient to withstand the special demurrer.
This court cannot consider the defendant's motion for a judgment notwithstanding the verdict because there is not provision in Code (Ann. Supp.) § 110-113 that a motion of that nature can be predicated upon the denial of a motion for nonsuit. No motion for direction of a verdict was made by the defendant.
The court erred in granting the plaintiff's motion for a directed verdict. The evidence not only did not demand the verdict directed, but was insufficient to support it, and in fact demanded a finding for the defendant. So far as the record discloses, there was no attempt to introduce in evidence the account sued on and no proof of its correctness. Mrs. Kincaid, a member of the plaintiff partnership, did testify on direct examination that the debits and credits making up the account were correct, but on cross-examination she frankly admitted that she did not keep the account and could not swear that the items constituting it were in fact correct. The rule is well established that the jury may believe a witness, not a party to the case, though his testimony is equivocal and contradictory. The jury may accept a part of it as true and reject a part as false, they being the judges of the weight and credit to be given the evidence. Reaves v. Columbus Electric c. Co., 32 Ga. App. 140 (3) ( 122 S.E. 824); Dodys v. State, 73 Ga. App. 311 (3) ( 36 S.E.2d 164). But the rule is not applicable where a witness testified to stated facts on direct examination and admits on cross-examination that he had no means or opportunity of knowing the facts to which he testified. In Davis v. Akridge, 199 Ga. 867 (2) ( 36 S.E.2d 102), it is held: "The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague, or equivocal. W. A. R. Co. v. Evans, 96 Ga. 481 [23 S.E. 494]; Freyermuth v. R. Co., 107 Ga. 32 [32 S.E. 668]; Ray v. Green, 113 Ga. 920 [39 S.E. 470]; Farmer v. Davenport, 118 Ga. 289 [45 S.E. 244]. And he is not entitled to a finding in his favor if that version of his testimony the most unfavorable to him shows that the verdict should be against him. Southern Bank v. Goette, 108 Ga. 796 [33 S.E. 974].' Southern Railway Co. v. Hobbs, 121 Ga. 428 ( 49 S.E. 294)."
The special grounds 1, 2, 3, 4 and 6 of the motion for new trial raise substantially the same question as that passed upon in ruling on the direction of the verdict. We consider them meritorious and think that the evidence, the admission of which is excepted to in ground 3, should have been excluded. Special ground 5 need not be passed upon as the point raised by it is decided in disposing of the exception to the direction of the verdict.
Judgment reversed. Felton, C. J., and Nichols, J., concur.