Alexander v. Boston Old Colony Ins. Co.

• Court: Georgia Court of Appeals
• Writing for the Court: STOLZ; BELL; EVANS
• Citation: Alexander v. Boston Old Colony Ins. Co., 195 S.E.2d 277, 127 Ga.App. 783 (Ga. App. 1972)
• Decision Date: 04 December 1972
• Docket Number: No. 47218,2,3,Nos. 1,47218,s. 1
• Parties: C. D. ALEXANDER v. BOSTON OLD COLONY INSURANCE COMPANY

Page 277

195 S.E.2d 277

127 Ga.App. 783

C. D. ALEXANDER v. BOSTON OLD COLONY INSURANCE COMPANY.

No. 47218.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Dec. 4, 1972.

Rehearing Denied Dec. 20, 1972.

Carter, Ansley, Smith, McLendon & Quillian, James B. Gurley, Atlanta, for appellant.

Swift, Currie, McGhee & Hiers, Clayton H. Farnham, Atlanta, for appellee. Syllabus Opinion by the Court

STOLZ, Judge.

Plaintiff brought this action to recover under an insurance policy. The defendant's motion for summary judgment was granted, from which judgment the plaintiff appeals.

The motion was supported by an affidavit from an individual who swore that he was the secretary of the defendant company and that attached to his affidavit was a specimen copy of a portion of the standard homeowner's policy issued by the insurer which is a true copy of that portion of the plaintiff's policy, on which the action is based. The relevant part of the exhibit provided that no suit or action on the policy for the recovery of any claim could be sustained in any court of law unless commenced within 12 months next after inception of the loss. The plaintiff's complaint alleged February 6, 1970, as the date of the loss. The complaint was filed on September 15, 1971, more than 12 months after the loss. On the day of the hearing on the defendant's motion, but prior thereto, the plaintiff filed an amendment to his complaint alleging 'that he was without mental capacity to properly transact his business from the date of his aforesaid loss until on or about October 6, 1970' and that his disability was caused by the murder of his wife on the date of the loss. Held:

1. The appellant makes the contention, for the first time on his appeal, that the defendant's supporting affidavit could not be considered by the trial court in adjudicating the motion for summary judgment on the grounds that it shows that it was not made on the personal knowledge of the affiant, and that the exhibit, a copy, should not have been considered in the absence of an accounting for the original. On the question of whether the appellate courts can rule on the competency and admissibility of supporting affidavits in the absence of objections thereto in the trial court, see Green v. Wright, 225 Ga. 25, 165 S.E.2d 843; Reed v. Batson-Cook Co., 122 Ga.App. 803, 806, 178 S.E.2d 728; Ga. Hwy. Express, Inc. v. W. D. Alexander Co., 124 Ga.App. 143, 183 S.E.2d 215; Salters v. Pugmire Lincoln-Mercury, Inc., 124 Ga.App. 414, 417, 184 S.E.2d 56; and the concurring opinion in Federal Ins. Co. v. Oakwood Steel Co., 126 Ga.App. 479, 481, 191 S.E.2d 298. Even assuming the validity of the affidavit and the attached copy, or the plaintiff's waiver of its invalidity, however, the grant of the summary judgment was error for the reasons hereinafter stated.

2. Even if the defendant's showing on the motion based upon the contractual 12-month limitation period, pierced the plaintiff's original pleadings, the plaintiff's timely amendment to his complaint (filed after the filing of the motion for summary judgment but prior to the hearing thereon) alleged facts which, if proved, would toll the contractual limitation. As to this, see Code §§ 3-801, 3-802; 53 C.J.S. Limitations of Actions § 26, p. 969; Pilgrim Health &c. Ins. Co. v. Chism, 49 Ga.App. 121, 123, 174 S.E. 212; Buffalo Ins. Co. v. Steinberg, 105 Ga.App. 366, 370, 124 S.E.2d 681; Mayor &c. of Athens v. Schaeffer, 122 Ga.App. 729, 178 S.E.2d 764; Lacy v. Ferrence, 222 Ga. 635, 151 S.E.2d 763.

This allegation in the complaint is presumed to have been denied by the defendant. Code Ann. § 81A-108(d) (Ga.L.1966, pp. 609, 619, as amended). Accordingly, the only issue in the case at the summary judgment hearing was whether the policy limitation period had been tolled. 'As in any summary judgment case, our inquiry must be whether there remains any genuine issue of fact after consideration of the pleading and supporting evidence. Code Ann. § 110-1203. The allegations of both the petition and the answer must be taken as true in a summary judgment case unless the movant successfully pierces the allegations so as to show that no material issue of fact remains. (cits.).' (Emphasis supplied.) Cotton States Mut. Ins. Co. v. Martin, 110 Ga.App. 309, 310, 138 S.E.2d 433. 'Respondent may resist by doing nothing, relying on the failure of the movant to remove all issues of fact from the case; or by presenting evidence showing an issuable fact.' (Emphasis supplied.) Benefield v. Malone, 110 Ga.App. 607, 610, 139 S.E.2d 500. See also Reed v. Batson-Cook Co., 122 Ga.App. 803, 807, 178 S.E.2d 728; Southern Bell Tel. & Tel. Co. v. Beaver, 120 Ga.App. 420(1), 170 S.E.2d 737; Kroger Co. v. Cobb, 125 Ga.App. 310(2), 187 S.E.2d 316; Central of Ga. RR Co. v. Woolfolk Chemical Works, Ltd., 122 Ga.App. 789, 795, 178 S.E.2d 710; 6 Moore's Federal Practice, § 56.04(2), p. 2066.

The cases of Crutcher v. Crawford Land Co., Inc., 220 Ga. 298, 138 S.E.2d 580; Jerry Lipps, Inc. v. Lewallen, 118 Ga.App. 479, 164 S.E.2d 232, and Scales v. Peavy, 103 Ga.App. 42(3), 118 S.E.2d 193, do not require the conclusion that the plaintiff's...