Firemen's Ins. Co. of Newark, N. J. v. Allmond
| Decision Date | 17 April 1962 |
| Docket Number | No. 39448,No. 3,39448,3 |
| Citation | 105 Ga.App. 763,125 S.E.2d 545 |
| Parties | FIREMEN'S INSURANCE COMPANY OF NEWARK, N. J. v. Luther ALLMOND |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The motion for new trial was properly denied on both the general and special grounds.
Luther Allmond, plaintiff below, sought recovery from Firemen's Insurance Company of Newark, N. J. for a fire loss of his peanut combine which he alleged was insured under a fire policy issued to him by that company, insuring against loss by fire up to $4,000. He alleged that, after notifying the company's agent of the less, an adjuster from the company came to discuss the loss with him, and that at that time he demanded of the adjuster $4,000 for the total loss of his combine, but that no settlement of the loss had ever been made with him. It appears that the adjuster negotiated with plaintiff over a period of months, after which he offered, on behalf of the company, to pay $1,898.75 in settlement of the loss, or, in the alternative, to replace the combine with another that could have been obtained from a local dealer on a trade-in of the burned refuse and a payment of $2,-712.50 in cash, of which plaintiff should pay $813.75 and the company $1,898.75. The replacement offer was made pursuant to a provision in the policy that 'Unless otherwise provided in form attached, this Company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs and the loss or damage shall be ascertained or estimated according to such actual cash value with proper deduction for depreciation, however caused, and shall in no event exceed what it wouid then cost to repair or replace the same with material of like kind and quality.' Plaintiff testified that he refused the cash offer because he deemed it to be less than his loss, and refused the offer of replacement because he did not deem the machine offered to be the equivalent of his own prior to the fire loss, because the company was seeking to require him to make a cash payment of $813.75 in order to effect the trade-in or replacement, and because he did not, at the time, have need for another combine. His demand for payment of $4,000 was asserted again, after which the company raised its offer of settlement finally to $2,250, which was also refused. Plaintiff sought attorney's fees and damages because of the alleged bad faith of the company in refusing to effect settlement of his loss. Defendant demurred on the ground that compliance with the provisions of the policy requiring the filing with it by defendant of a sworn proof of loss was not alleged. Defendant admitted the demands, the negotiations, and the offers of settlement that it had made, but denied any had faith. The jury returned a verdict for $4,000 and found that bad faith had existed, awarding a penalty of 15 per cent. The court awarded attorneys fees of $1,000. Defendant, in due time, filed its motion for new trial, amended it, and now excepts to the overruling of its demurrer as well as to an order overruling the amended motion.
Homer S. Durden, Jr., Swainsboro, for plaintiff in error.
Rountree & Rountree, W. E. Rountree, Swainsboro, for defendant in error.
1. The exception to the overruling of the demurrer and the first special ground of the amended motion for new trial not having been argued in the brief of counsel for defendant (plaintiff in error), are both treated as abandoned. Code § 6-1308.
2. Under the general grounds of the motion for new trial, it is urged that, since plaintiff (a) refused to accept the replacement of the combine that was offered to him and (b) failed to submit proof as to the cost of repairing or replacing the combine and (c) likewise failed to submit competent proof as to its fair market value, the verdict is without evidence to support it.
(a) There are at least two reasons why the offer of replacement need not have been accepted here. First, it appears from the defendant's answer that the offer was burdened with a condition that plaintiff pay to the dealer from whom the replacement was to be obtained $813.75. Such a condition is inconsistent with the provision of the policy under which the offer was made. Irvin v. Locke, 200 Ga. 675, 679, 38 S.E.2d 289. Second, it further appears from the defendant's answer that, subsequently to the tender of the offer of replacement, an offer of $2,250 cash settlement was made. Thus, the final offer superseded all others. Moreover, if neither of these situations obtained, it would be a question for the jury to say whether the replacement tendered was of 'like kind and quality.'
(b) Plaintiff testified, and the company's adjuster conceded, that the adjuster informed him after an examination of the burned refuse and after checking with the dealer from whom the combine had been purchased, the cost of repairing or replacing would exceed its value before the fire loss. The law does not require a vain or useless thing of anybody. Irvin v. Locke, 200 Ga. 675, 679, 38 S.E.2d 289, supra; Johnson v. State, 215 Ga. 839(5), 114 S.E.2d 35. If the cost of repairing was in excess of the actual cash value, recovery could be had for no more than the actual cash value under the terms of the policy.
(c) Plaintiff testified that the combine was purchased new by him in 1957 at a cost of $5,200, that he had kept it out of the weather and from exposure to the elements, had kept it in a perfect...
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