concurring specially. I concur in the result reached, but cannot agree with the reasons for the disposition of the assignments of error to the charge in the third division of the opinion. The assignment of error on the charge contained in the motion for new trial reads as follows:
“Movant avers that said charge was erroneous and not sound as an abstract principle of law, and on the further ground that said charge tended to confuse and mislead the jury in that it is not adjusted to the pleadings and the evidence, and is wholly unsupported by the pleadings or the evidence and therefore the court erred in so instructing the jury and allowing the jury to predicate its verdict thereon.”
Pretermitting the question as to whether the assignments of error are sufficient to present a question for decision by this court other than that portion assigning error on the ground that the charge was not sound as an abstract principle of law, and, assuming that the charge is sound as an abstract principle of law under the authority of Assurance Co. of America v. Bell, 108 Ga. App. 766 (134 SE2d 540), it was nevertheless not adjusted to the pleading and the evidence for the reason that, as the opinion states, there was no evidence that the adjuster settled the claim or assumed responsibility for the claim, and there was no pleading to this effect, although such a contention may have been orally made upon the trial of the case. However, this error was harmless to plaintiff for the plaintiff apparently was contending that there was such evidence. Any error at this point was favorable to plaintiff. Even if there were no evidence that the claim was not within the coverage, so as to make the charge inapplicable for that reason, this would not make the charge harmful to plaintiff, when no proof was offered as to any settlement or assumption of liability having been made. The charge was not appropriate to the issues made by the pleading and the evidence, but the error, if any, was harmless to the complaining party.