ON MOTION EOR REHEARING.
The original opinion in this case, with some modification made upon a consideration of the motion for a rehearing, will dispose of all questions raised by the motion, except the question as to waiver which was dealt with in the third division of the opinion. It is contended in the motion for rehearing that the failure of the arbitrators to state the sound value of the property was a fatal defect, for the reason that the policy provided that the insurance company would have the option “to take all or any part of the articles at such' ascertained or appraised value;” in other words, that under an award which separately fixes the sound value and the damage, the insurer is given the option either to pay the loss and damage without more, or to pay the sound value and take the property. It is our opinion that this was also a right which the insurance company could waive, *41and that what was said in the original opinion would not be inapplicable because of the option privilege referred to.
A further contention now made on the question of waiver is that we misconstrued the record and the assignments of error in the plaintiff’s motion for a new trial, in stating that in the previous trial the award was admitted in evidence without any objection by the insurer. This statement was based upon ground 18 of the motion for a new trial, as filed by the plaintiff, which in form was as follows: “Because, as contended, the Court of Appeals on the first trial of this case, when the award was in evidence without objection, held that the evidence did not demand a verdict for the defendant, whereas in the second trial the court excluded the award on the ground that it was void, and then held that the evidence did demand a verdict for the defendant; and for this reason the court erred, and a new trial should be granted the plaintiff.” This was alleged as one of the reasons why the “ruling of the court that the award was void, excluding it from the evidence, and directing a general Verdict for the defendant, was error.” This ground was expressly approved by the trial judge, and the question arises as to whether it contained a recital of fact as to the admission of the award in evidence upon the first trial without objection, or whether it was a mere contention or conclusion upon the part of the plaintiff, to be construed in the light of the record. Aside from the motion for a new trial, there is nothing to show what occurred as to objections upon the previous trial; that is to say, the record is silent as to whether the •award was then admitted in evidence over objection or without objection. The motion for a new trial, therefore, is not in conflict with the record. It follows that the rule that a ground of a motion for new trial is invalid where it is contradicted by the record (Trammell v. Shirley, 38 Ga. App. 710, 712, 145 S. E. 486) can have no application in the present case, and the only matter for determination is whether the motion for a new trial should be construed as containing a recital of fact rather than a mere contention. “There is a wide difference between the effect of the verification of statements contained in assignments of error which are determinable by examination of the record and the verification of statements relating to incidents of the trial extraneous from the record. As to the former, the record will control in cases of doubt; while every statement of fact as to any matter relating to incidents of the trial *42dehors the record will depend for its verification upon the approval of the trial judge.” Fruit Dispatch Co. v. Roughton-Halliburton Co., 9 Ga. App. 108 (2) (70 S. E. 356). See also, in this connection, Southern Railway Co. v. Flemister, 120 Ga. 524 (2) (48 S. E. 160). Since the statement in the motion for a new trial that the award was admitted in evidence upon the previous trial without objection is not disputed by the record, but is in reference to a matter dehors the record, its verification by the trial judge must be taken as true, and the case as now made should be disposed of accordingly. The fact could have been brought to the attention of the trial judge by statements or admissions of counsel when the award was offered in evidence upon the last trial, and in the decision of the questions now presented this court must assume that the fact was established before the trial judge in some way.
In the motion for rehearing it is claimed for the insurance company that the recital referred to is untrue as a matter of fact, in that the introduction of the award was objected to upon the first trial upon the same grounds as were urged upon the second trial; although, since the award was then admitted in evidence, and the trial resulted in a verdict in favor of the defendant, followed by an appeal from the trial court taken only by the plaintiff, the record on the first trial (National Fire Insurance Co. v. Ozburn, 38 Ga. App. 276, 143 S. E. 623), did not show the specific objections made by the defendant to the introduction of the award iir evidence at that time. With all deference to counsel, we can not consider this statement to the extent of allowing it to overthrow the approved grounds-of the motion for a new trial, as presented for consideration at this time. It is to be regretted if by some mistake or inadvertence this court is now dealing with a moot case. Perhaps the record may be clarified upon the next trial; but in the meantime we will express no opinion as to whether the insurance company maj'- be relieved of what is now an apparent waiver of the defect in the award. It may be said that in ground 18 of his motion for a new trial the plaintiff was seeking only to invoke “the law of the case” as ruled in the first decision of the case by this court. Be that as it may, the statement of fact is nevertheless included as a part of such ground, and from what has been said such statement can not be ignored in the consideration of the case as now presented.
We do not sustain the plaintiff’s contention as to the applicability *43of tbe law of the case. There is a material difference between the present and the previous records. Upon the first trial the plaintiff introduced evidence in support of the first count of the petition, which sought a recovery without reference to the award, and the evidence tended to prove the loss and damage independently thereof. Hence, a verdict for the plaintiff would have been authorized upon that trial, notwithstanding the award may have been void, its invalidity not being attributable to any fault on the part of the plaintiff. United States Fidelity & Guaranty Co. v. Corbett, 35 Ga. App. 606, 612 (134 S. E. 336’); Insurance Company of North America v. Folds, 35 Ga. App. 720 (4) (135 S. E. 107); Atlas Assurance Co. v. Williams, 158 Ga. 421 (123 S. E. 697). In the trial now under review the plaintiff relied solely upon the second count of the petition, in which he sought to recover the amount of the damage as determined by the award alone, and introduced no other evidence as to the amount of the damage. It is therefore apparent that the law of the case does not control the present controversy.
Rehearing denied.
Jenlcins, P. J., and Stephens, J., concur.