Standard Accident Insurance Company v. Simpson

ADAMS, J.: From judgment for appellee based on a jury verdict this appeal is taken. The controlling question is whether the evidence is sufficient to sustain the verdict and judgment. The record conclusively reveals that appellee entered into a construction contract and procured appellant to become surety for the faithful completion of the contract. Besides the payment of premium for the bond by appellee, he also agreed to reimburse appellant for any loss on the surety bond. Claims were made against the bond which culminated in a suit in the Federal Court. Among many other parties to the suit in the Federal Court were both appellant and appellee. Final judgment was entered fixing liability against appellant for the full amount of the bond. Appellant paid the judgment and upon appellee’s refusal to reimburse them this action was brought. The appellant’s case, to a great extent, was made by exhibits. The trial judge refused permission to read same to the jury. So far as the record shows their content was never made known to the jury. The effect of this ruling was to deprive appellant of a fundamental right to fully present its case to the jury. *566 Appellee was permitted to give testimony, the effect of which was to impeach the Federal Court judgment. This was’ error. As pointed out- above both appellant and appellee were parties. The case proceeded to final judgment. The prime question there litigated was liability on the bond. Appellee is now estopped to go behind the judgment in this case. We find the evidence insufficient to sustain a verdict for the appellee and the judgment is reversed for further proceedings not inconsistent herewith. Reversed.. BROWN, C. J., WHITFIELD and BUFORD, JJ., concur.