Opinion
35384.
DECIDED JANUARY 27, 1955.
Action on insurance policy. Before Judge Heery. Savannah City Court. July 30, 1954.
Lewis, Wylly Javetz, for plaintiff in error.
Brannen, Clarke Hester, contra.
1. An assignment of error on a refusal toward a nonsuit will not be considered when after such refusal a motion for new trial is made, one ground of which complains that the verdict is contrary to the evidence and without evidence to support it.
2. In the absence of a timely written request, it is not error for the trial court to charge Code § 56-706 without defining the term "bad faith" as applied to insurance companies.
3. Whether or not the insurance company acted in bad faith in the present case in refusing to recognize its liability under its policy, was a question for the jury.
4. The evidence authorized the verdict.
5. In view of the foregoing rulings, it necessarily follows that the trial court did not err in denying the motion for a judgment notwithstanding the verdict.
DECIDED JANUARY 27, 1955.
J. W. Elrod brought suit in the City Court of Savannah against The Hanover Fire Insurance Company to collect on a collision-insurance policy issued to the plaintiff by the defendant insurance company through its agent. Attorney's fees of $250 were prayed for. The following allegations were admitted in the answer of the defendant: The plaintiff's automobile was damaged in a collision with an automobile being operated by Edgar M. Smith, this damage amounting to $637.24. The insurance policy included the standard $50 deductible clause. And further that more than 60 days had passed since the plaintiff had demanded payment under the policy.
The defendant insurance company denied that it owed the plaintiff any amount of money, and alleged in its answer the following: The plaintiff had violated the contract by accepting $100 from Edgar M. Smith in full settlement of the claim, thereby depriving the defendant insurance company of its rights of subrogation under the policy. The case proceeded to trial before a jury.
On the trial the plaintiff presented expert testimony as to reasonable attorney's fees, and introduced correspondence to show that he had attempted to settle the matter with the insurance company without success. The defendant offered in evidence correspondence showing that, after the collision between the plaintiff's automobile and the Smith automobile, the defendant insurance company had agreed as to the damage done to the plaintiff's automobile and mailed a draft to the holder of a bill of sale to secure debt on the plaintiff's automobile, and that when subrogation proceedings were begun it was discovered that the plaintiff had taken $100 from Smith, the tortfeasor, as full settlement of his claim against Smith, for which he issued a receipt reading as follows: "October 19, 1953. Received from Edgar M. Smith one hundred dollars, $100.00. J. W. Elrod." On the request of the insurance company, the holder of the bill of sale to secure debt returned the unpaid draft. Witnesses for the defendant insurance company, including Smith, his brother, brother-in-law, wife, and supervisor, testified that the plaintiff, after giving Smith the receipt, stated, in effect, "Well, this lets you out."
The plaintiff, J. W. Elrod, then testified that the $100 was to cover his expenses in having to return to Savannah, Georgia, to attend the police-court hearing and to make another trip to Savannah to get his car when it was repaired. The only reference to the $100 was for the purpose of covering his expenses.
The defendant made a motion for nonsuit, and a motion for a directed verdict, both of which were denied. The jury returned a verdict for the plaintiff in the amount of $587.24 and $250 as attorney's fees. The exception is to separate judgments denying the defendant's amended motion for new trial and its motion for a judgment notwithstanding the verdict.
1. Special ground 4 of the motion for new trial complains that the trial court erred in denying the defendant's motion for nonsuit. In the bill of exceptions error is assigned on this ruling. Since, however, the defendant filed a motion for new trial, one ground of which complains that the verdict is contrary to the evidence and is without evidence to support it, an objection to the denial of its motion for nonsuit cannot be considered. Schaffer v. Moore, 59 Ga. App. 542 ( 2 S.E.2d 151).
2. Special ground 5 complains that the trial court erred in charging Code § 56-706 as to bad faith and not charging that, under this Code section, "bad faith is the frivolous or unfounded refusal to pay on the part of the insurance company." In the absence of a timely written request for such charge, the court did not err in failing to charge as complained in this ground. Crawford v. Western Atlantic R. Co., 51 Ga. App. 150 ( 179 S.E. 852).
3. Special ground 6 complains that the award of attorney's fees was contrary to the evidence. The law provided that attorney's fees may be recovered, in a reasonable amount, in an action against an insurance company refusing to pay a loss, where "it shall be made to appear to the jury trying the case that the refusal of the company to pay said loss was in bad faith." Code § 56-706. The question as to whether or not the insurance company acted in bad faith in refusing to pay the loss, under the facts of this case, was a question solely for the jury, and this court cannot say as a matter of law that its finding was not authorized. See American Casualty Co. v. Callaway, 75 Ga. App. 799 ( 44 S.E.2d 400). This case differs from Universal Credit Co. v. Service Fire Ins. Co., 69 Ga. App. 357 ( 25 S.E.2d 526). In that case the assured had, in a previous action, brought suit against the tortfeasor, which was later dismissed, and in the order dismissing the case it was stated in part that the case had been settled between the parties, and the clerk was authorized to cancel the same from the dockets. In the present case the defendant insurance company produced a receipt, which only stated that the plaintiff had received $100 from the tortfeasor, it being a jury question as to what the $100 was for.
4. The evidence, though conflicting as to whether the plaintiff had violated the insurance contract, was sufficient to authorize the verdict for the plaintiff. It follows that the trial court did not err in denying the insurance company's motion for new trial for any reason assigned.
5. The trial court did not err in denying the motion for a judgment notwithstanding the verdict, as provided for in certain cases (see Ga. L. 1953, Nov.-Dec. Sess., pp. 440-444), inasmuch as the judgment denying the motion for new trial is being affirmed by this court.
Judgment affirmed. Gardner, P. J., Townsend, Carlisle, and Quillian, JJ., concur. Felton, C. J., dissents in part.
Under the facts of this case, I do not think that a verdict finding that the insurance company refused to pay the claim in bad faith was authorized. In my opinion it was justified in having a jury determine whether it was liable or not for the damages claimed.