Opinion
43114.
ARGUED OCTOBER 5, 1967.
DECIDED JANUARY 5, 1968. REHEARING DENIED FEBRUARY 13, 1968.
Action on insurance policy. McDuffie Superior Court. Before Judge Stevens.
Robert E. Knox, Fulcher, Fulcher, Hagler, Harper Reed, E. D. Fulcher, A. Montague Miller, for appellant.
Randall Evans, Jr., Albert G. Ingram, Jr., for appellee.
This case presents a jury question as to whether the insured wilfully and fraudulently gave answers attributed to her in a written statement which were materially different from those she testified to on the trial. Hence, the defendant insurer's motion for summary judgment predicated on her failure to comply with the "assistance and co-operation" provision of the policy was properly denied.
ARGUED OCTOBER 5, 1967 — DECIDED JANUARY 5, 1968 — REHEARING DENIED FEBRUARY 13, 1968 — CERT. APPLIED FOR.
Phyllis Sue Wendler brought this action in McDuffie Superior Court against State Farm Mutual Automobile Insurance Company (hereinafter referred to as State Farm) seeking to recover $52,500, the amount secured in judgment against the defendant's insured as a result of an automobile collision. The petition alleged that the plaintiff was injured while riding in an automobile driven by the defendant's insured, a Mrs. Burnett; that the plaintiff obtained a judgment for $52,500 which was now final; that the policy between the insured and the defendant, State Farm, was in full force and effect when the plaintiff was injured; that the insured was insolvent and hence judgment was sought against State Farm for the principal amount, interest and costs.
State Farm filed an answer setting out that it defended the insured in the former case under a non-waiver agreement which reserved its rights under the policy. The answer further alleged that the insured had failed to comply with the assistance and co-operation clause of the insurance policy in this regard: that on the trial of the case the insured repudiated statements which she had previously given to the defendant regarding the manner in which the accident occurred; that the material change in the description as to the manner in which the accident occurred not only was a failure to co-operate but was contrary to that version originally given and resulted in the rendition of a verdict in favor of the plaintiff and against the defendant's insured; that the sworn testimony related by the defendant's insured on the trial of the case "constituted a material change, was wilfully and consciously given, was fraudulently given to help the plaintiff herein, was beneficial to said plaintiff and prejudiced the rights of this defendant."
This is the second appearance of this case in the Court of Appeals. See State Farm Mut. c. Ins. Co. v. Wendler, 115 Ga. App. 452 ( 154 S.E.2d 772), for a full recital of the pleadings of the case, especially the defendant's answer. In the former case this court, by divided opinion, held that the defensive pleadings were sufficient to withstand the plaintiff's motion for a summary judgment where such pleadings were not pierced by affidavits or interrogatories which would remove all justiciable issues from the case.
In this case the defendant moved for a summary judgment and in support thereof attached as exhibits various affidavits substantiating the pleaded defense. The plaintiff answered the motion for summary judgment, denying its material allegations, and introduced a counter affidavit by the defendant's insured. The trial judge overruled the motion for summary judgment, and the defendant appeals, enumerating such judgment as error.
The motion for summary judgment alleged that: State Farm was motivated to defend its insured because of complete and confident reliance upon her detailed description of the occurrence as related to State Farm's agent in a signed statement and on the insured's answers to interrogatories propounded by the plaintiff; on the trial the insured's testimony was substantially and materially contrary to her written statement and her answers to interrogatories, thereby seriously prejudicing and sabotaging State Farm which was defending its insured in good faith; before the trial the insured expressed her intention and desires to the owner and operator of a "body shop" and stated: "I want my daughter-in-law to get all the money she can because she has a very serious injury. I know State Farm is going to cancel me because this wreck is going to cost so much, and if I have to lie and say that I was driving drunk I will do it to see that she collects." It was further alleged these intentions and desires were never expressed to State Farm; that the insured "by reason of her predetermined decision, implemented, by her testimony, to assume unwarranted liability for herself and unjustifiably and illegally impose upon this defendant the payment of damages to her daughter-in-law so obviously and flagrantly violated the `Co-Operation and Assistance' provision of the policy she forfeited all rights and protection to which she [and thus the plaintiff] was otherwise entitled."
In support of the motion for summary judgment the defendant introduced various affidavits, the insured's written statement, the insured's answers to certain interrogatories propounded by the plaintiff, the repairman's affidavit as to the insured's statement to him and certain affidavits of its counsel and agents.
In her written statement the insured related that she was driving the automobile with the plaintiff, her daughter-in-law, in the front seat; that she met two automobiles, with bright lights, one of which entered her lane of traffic, and to avoid colliding with such automobile she drove to the right and lost control of the car; that she was meticulously observing the speed limit of 50 miles per hour. In response to one of plaintiff's interrogatories she related: Q. "State whether or not you lost control of the car shortly after you left Thomson. State whether or not your physical condition, and your inability to see through the downpour of rain, and your driving at a speed of approximately fifty-five miles per hour, caused you to lose control of the automobile." A. "I did not lose control of the car before the accident. No, I saw headlights approaching in my lane and decided to turn off to the right to avoid a head-on collision."
At the trial of the case the insured testified she was driving at a speed of 50 to 55 miles per hour; that she did not have the car under control at the time of the accident because she had been unable to straighten the car out after having run off the shoulder of the road; that she was not sure whether the lights of the approaching cars were bright or dim; that either she got into the lane of the approaching traffic or "they got into hers" that she could not be sure whether an approaching vehicle attempted to pass in her lane or whether she was in its lane.
The insured's affidavit recited that she had not made a predetermined decision to assume unwarranted liability or sought to impose upon State Farm in any way or violated the co-operation and assistance provision of her insurance policy; that she denies the statement alleged to have been made to the repairman to the effect that she would lie and say she was driving drunk to be sure the plaintiff collected; that such statement attributed to her was an absolute falsehood. The affidavit further related that a part of what is contained in the insured's written statement was true and a part untrue; that she did not tell State Farm's agent certain items set out in the statements, such as: she was meticulously observing the speed limit of 50 miles per hour, physical description as to highway, damage to the fence, who owned it and that she had read the statement and found it true and correct. The affidavit also related the insured told the agent certain facts which were omitted in the statement, to wit: that it was raining very hard and that the car was very difficult to control because of a downpour of rain and a slick pavement; she did not know how far the insured's car was from the other vehicle when it appeared to enter her traffic lane and she was not sure whether she was in its lane of travel or it was in her lane of travel. The affiant's statement was that she had not deceived State Farm respecting any phase of this matter; that she truthfully answered all questions and interrogatories; that if the "whole truth" was not forthcoming it was because questions were not asked covering the whole case; that she had not consciously sought to evade any question or to deceive anyone, nor had she failed to tell the whole truth where inquiry was made and opportunity for doing so; that she had no intention or desire to deceive anyone.
The defendant contends under the ruling of State Farm Mut. c. Ins. Co. v. Wendler, 115 Ga. App. 452, supra, that the insured must tell her insurer the complete truth concerning the accident and must stick to this truthful version throughout the proceedings; that she must not cripple her insurer in the defense of the suit by switching from one version of the occurrence to another. Thus, because the defendant introduced evidence showing a material variation in her testimony on the trial from that given in a prior written statement, every material issue in the case was eliminated and the defendant was entitled to a summary judgment.
This court held in State Farm Mut. c. Ins. Co. v. Wendler, 115 Ga. App. 452, supra, that in the absence of a piercing of the pleadings the issues raised by the answer were for a jury. The allegations of the answer and those contained in the motion for summary judgment brought by the defendant, State Farm, were predicated on the insured acting wilfully, consciously and fraudulently in giving her statement to the defendant. Wilfulness and fraud are essential ingredients to substantiate the defense of failure to co-operate ( National Union Fire Ins. Co. v. Carmical, 99 Ga. App. 98, 104 ( 107 S.E.2d 700); Ocean Acc. c. Corp. v. Lucas, 74 F.2d 115 (98 ALR 1461)). See Anno., 34 ALR2d 264. Under the allegations of the answer, without explanation by the plaintiff, this court found: "If she testified truthfully, as we must assume she did, she suppressed the truth until that time, and the suppression of truth is as false and fraudulent as a wilful misrepresentation." State Farm Mut. c. Ins. Co. v. Wendler, 115 Ga. App. 452, 456, supra. It is true, as the defendant points out, that the court held: "The answer sets forth a good defense to the action in that sufficient facts are alleged to prove the lack of co-operation by the insured whichever version of the occurrence given by the insured was true." Id., p. 455. However, here the plaintiff pierced the material allegations of the answer by filing the counter affidavit of the insured, as set forth previously, and thus did deny, contradict and offer explanation of the defendant's evidence adduced in support of the answer.
While the counter affidavit was interspersed with subjective statements as to the witness's intent, it has been held that a witness may testify as to his intent, for such testimony amounts to a statement of fact and not a mere conclusion. Royce Co. v. Gazan, 76 Ga. 79 (5); Hale v. Robertson Co., 100 Ga. 168 (1) ( 27 S.E. 937); Alexander v. State, 118 Ga. 26 (4) ( 44 S.E. 851); Childers v. Ackerman Construction Co., 211 Ga. 350, 354 ( 86 S.E.2d 227). Moreover, on motion for summary judgment we recognize the rule that "the burden is upon the moving party to establish the lack of a genuine issue of fact and the right to a judgment as a matter of law, and any doubt as to the existence of such an issue is resolved against the movant. . . The party opposing the motion is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists and the trial court must give that party the benefit of all favorable inferences that may be drawn from the evidence." Holland v. Sanfax Corp., 106 Ga. App. 1, 4 ( 126 S.E.2d 442); McCarty v. National Life c. Ins. Co., 107 Ga. App. 178, 179 ( 129 S.E.2d 408).
Therefore, a jury question was presented as to whether the insured wilfully and fraudulently gave the answers attributed to her. The trial judge did not err in denying the motion for summary judgment.
Judgment affirmed. Jordan, P. J., and Deen, J., concur.