Opinion
36384.
DECIDED NOVEMBER 16, 1956. REHEARING DENIED DECEMBER 5, 1956.
Action on insurance policy. Before Judge Wright. Fulton Civil Court. July 3, 1956.
Carter, Latimer Savell, for plaintiff in error.
Wm. F. Buchanan, Newell Edenfield, Lamar Sizemore, contra.
The denial of the motion for a new trial as to the general grounds and the special grounds shows no reversible error.
DECIDED NOVEMBER 16, 1956 — REHEARING DENIED DECEMBER 5, 1956.
George M. Califf brought suit against Iowa Hardware Mutual Insurance Company. The record reveals that the plaintiff procured from the defendant an insurance policy for one year, from March 4, 1954, to March 4, 1955. A copy of the policy issued to the plaintiff is attached to the petition. At the time the plaintiff procured the policy from the defendant on the car mentioned in the policy he was indebted to the Fulton National Bank for a balance of the purchase price on the car. He arranged with the bank to carry this balance of the purchase price, which amounted to $300, together with the premium of $94.90. In the process of arranging with the bank regarding the indebtedness which the plaintiff owed, the defendant, through its authorized agent, issued the policy above mentioned, and also sent to the bank the above-stated policy, and in addition, sent to the bank a complementary policy which we do not copy here for the reason that there is but one provision for the complementary policy in question here. That provision, numbered 22, reads: "Cancelation: This policy may be canceled by the named insured by surrender thereof or by mailing to the company written notice stating when thereafter such cancelation shall be effective. This policy may be canceled by the company by mailing to the named insured, at the address shown in this policy, written notice stating when, no less than five days thereafter, such cancelation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice and the effective date of cancelation stated in the notice shall become the end of the policy period. Delivery of such written notice either by the named insured or by the company shall be equivalent to mailing." The policy was issued on March 4, 1954. Thereafter on June 15, 1954, while the plaintiff was driving the automobile, one Alton Leach collided with and ran into the said automobile described in the insurance policy, the automobile being a new Chevrolet. On June 17, 1954, the plaintiff notified the company, through its authorized agent, of the collision. The injuries received by the plaintiff were as follows: "He sustained severe lacerations and loosening of several teeth in his upper jaw; lacerations of his face; fractures of the second, third, fourth and fifth ribs, left side anteriorly. He suffered bruises and contusions of his upper lip and bruises and contusions of both knee joints, and a severe sprain of his cervical dorsal spine." The injuries caused the plaintiff to expend money as follows: "$209.10 for physicians' and surgeons' bills, a hospital bill in the amount of $399.20, the sum of $35 for drugs and medicines, for all of which items petitioner sues."
Paragraph 8 of the petition reads: "That the automobile described in said policy was a new Chevrolet automobile and was damaged in the particulars set out in Exhibit B hereto attached, and the necessary labor and parts to restore the same to as near its previous condition as possible cost plaintiff the amount of $1,050, which was a fair and reasonable charge for the replacing of the damaged parts and the labor necessary to replace said damaged parts of said automobile. Of said expense of $1,050, $100 was deductible under the terms of said policy, leaving petitioner's damage in the amount of $950, for which petitioner sues."
Exhibit B reads: "Replace right rear door and molding; replace dash and steering wheel; windshield wiper switch; repair seat adjusters; replace windshield glass; replace right hood half; replace left hood half; replace ornaments and moldings; replace right front fender and molding; replace right headlight; replace right and left baffles and skirts; replace windshield washer and radiator cradle; recore radiator; replace two horns; replace front deflector; replace two bumper brackets; replace front bar and guards; replace grill; replace radiator hose; repair left front door; align front end; overhaul signal light switch; overhaul generator; replace left tie rod; replace stabilizer bar; install water pump; remove oil pans; smooth up crankcase; install oil seals; pull motor and install fly wheel housing."
Paragraph 14 of the petition reads as follows: "Plaintiff alleges that said refusal of defendant is in bad faith and that in addition to said items of loss above enumerated, plaintiff is entitled to recover 25% of the amount of said loss as damages, and the further sum of $350 as attorney's fees for bringing this action."
The policy here involved is what is generally known as a combination automobile-insurance policy.
The plaintiff alleges that, on October 18, 1954, he gave the defendant, through its authorized agent, notice of the collision and that more than 60 days elapsed from the time of the notice until the petition was filed. The record reveals that the plaintiff was not paid the sums for which suit is brought. It is contended by the defendant that there is due the plaintiff no amount for the reason that the policy was canceled under the provisions of paragraph 22 quoted hereinabove. The record reveals that the notice of the cancelation of the policy was sent to the bank and not to the plaintiff, the plaintiff contending not only that he received no notice of cancelation but that the defendant was not authorized to cancel the policy. It is contended that the policy was written for a period of one year, and because there was no provision for cancelation in the policy, it could not be canceled earlier.
The case was submitted to a judge of the Civil Court of Fulton County to pass upon the law and facts without a jury. The record reveals that the plaintiff's petition, as originally brought, alleged that the entire policy was based on Exhibit A, which it is alleged included the entire policy. Thereafter, and without objections, the court allowed an amendment substituting "New Exhibit A," the new Exhibit A being the 12 months' policy, which reads:
"NEW EXHIBIT A"
After hearing evidence from both parties the court found for the plaintiff the amount for which suit was brought.
This case turns mainly, if not entirely, on questions of facts and construction of the combination policy involved. One of the questions involved is whether or not the court erred in allowing the amendment marked "New Exhibit A" to be substituted for the original Exhibit A. This exhibit was a combination automobile policy. The provision of paragraph 22 has no bearing and does not control the terms of the 12 months' policy. In our view paragraph 22 of the policy concerns only the bank and the insurance company, and the court was authorized to find, under the pleadings and facts submitted, in favor of the plaintiff for the principal sum of $2,093.30 plus $523 damages, plus $350 attorney's fees, together with costs. The defendant filed a motion for new trial on the general grounds and added three special grounds by amendment.
Special ground 1 is to the effect that the trial judge erred in rendering said judgment because the evidence demands a finding that the policy was canceled. This ground is not cause for reversal for the reasons given hereinabove.
Special ground 2 assigns error in that the trial judge erred in rendering judgment for damages and attorney's fees for the reason that there was no evidence from which it could be inferred that the defendant was guilty of bad faith in refusing to pay the loss within sixty days after demand. We cannot see as a matter of law, under the facts of this case, that the defendant did not act in bad faith in not paying the claim within sixty days after notice of the injury in accordance with the statute.
Special ground 3 is to the effect that the petition was so defective that no valid judgment could be rendered thereon because of the substitution of the exhibits as mentioned hereinabove. This ground is without merit.
As to whether or not the defendant acted in bad faith is a question of fact and the trial court resolved that question against the defendant.
Under the record of this case we find no reversible error either in the statutory grounds or in the special grounds.
Judgment affirmed. Townsend and Carlisle, JJ., concur.