Harris v. U.S. Fidelity & Guaranty Co.

• Court: Georgia Court of Appeals
• Writing for the Court: PANNELL
• Citation: Harris v. U.S. Fidelity & Guaranty Co., 216 S.E.2d 127, 134 Ga.App. 739 (Ga. App. 1975)
• Decision Date: 09 May 1975
• Docket Number: No. 2,No. 50027,50027,2
• Parties: Loy HARRIS, Jr., et al. v. UNITED STATES FIDELITY & GUARANTY COMPANY

Page 127

216 S.E.2d 127

134 Ga.App. 739

Loy HARRIS, Jr., et al. v. UNITED STATES FIDELITY & GUARANTY COMPANY.

No. 50027.

Court of Appeals of Georgia, Division No. 2.

May 9, 1975.

W. L. Spearman, Duane Bryan Jackson, T. Scott Walters, Atlanta, for appellants.

W. Colquitt Carter, Atlanta, for appellee.

Syllabus Opinion by the Court

PANNELL, Presiding Judge.

This is an appeal from the grant of a motion for summary judgment in favor of an insurer and against the Harrises (husband and wife) and the Joneses (husband and wife, the wife being the named insured) in a joint action upon an automobile policy, insuring against public liability and collision; the Harrises seeking recovery upon judgments obtained against the Joneses to the extent of the insurance coverage under the policy, plus attorney fees on account of bad faith in refusing to pay said judgments and by the Joneses to recover for damages to their automobile under the collision provisions of the policy, and for damages and attorney fees expended by them in defending the action against them, because of the failure of the insurer to defend.

The insurer contends, (1) that it gave a notice of cancellation of the policy by mail in compliance with Code Ann. Section 56-2430, which effectively canceled the policy before the collision of the judgment holders and the insureds; and, (2) the statute of limitation had run on any action on the policy because a prior action, brought within time, had been dismissed for lack of a written order therein for a period of five years, and could not be rebrought under Code Ann. Section 3-808. The insureds and the judgment holders contend that evidence by the named insured, Mrs. Jones, that she did not receive the notice of cancellation made a question for decision by a jury as to whether the notice was actually mailed even though the evidence be uncontradicted otherwise that the notice was placed in an envelope, properly stamped and addressed as required by the terms of the policy and Code Ann. Section 56-2430, and a receipt of mailing given therefor by the U.S. Post Office. Held:

1. The collision occurred on May 17, 1964. The judgment against the insureds was obtained November 16, 1965, giving rise to a cause of action upon the policy of automobile liability insurance in favor of the judgment holders. A complaint on the policy was brought on May 15, 1968, within the statutory period of limitation of six years claimed by the insurer to apply to the present case. On May 15, 1973, this complaint was automatically dismissed for lack of any written order in the case for a period of five years (under either Section 41(e) of the Civil Practice Act (Ga.L.1966, pp. 609, 653; Code Ann. 81A, Section 141(e)), or under the Act of 1967, (Ga.L.1967, pp. 557, 558; Code Ann. Section 3-512) see Fulton County v. Church of Latter Day Saints,133 Ga.App. 847, 212 S.E.2d 451). After dismissal the complaint was rebrought and the costs paid under Code Ann. Section 3-808 on November 14, 1973, which is within the required six months period. The refiling of the complaint was permissible under the facts here and the running of the statute of limitation continued to be tolled. Bowman v. Ware, 133 Ga.App. 799, 213 S.E.2d 58. It is unfortunate that we did not, in the Bowman case, make any mention of Dollar v. Webb, 132 Ga.App. 811, 209 S.E.2d 253, as this case is now relied upon by the insurer as holding contrary to the above ruling. While it was held in the Dollar case that after the automatic dismissal 'determined the time of death' of the first case by drawing an erroneous analogy to a dismissal under demurrer under our old practice which could have been a dismissal on the merits or not on the merits, the facts of that case further disclose, and the decision is actually based thereon, that more than 6 months had elapsed between the automatic dismissal in that case and the rebringing of the complaint, which resulted in no tolling of the statute of limitations during this six month's period, allowed by Code Ann. Section 3-808, so that the period of the limitations thus ended prior to the rebringing of the complaint. The descriptive term 'death' in the Dollar case referred only to the 'death' of the pendency of the prior complaint, not the 'death' of the cause of action. In our opinion, neither of the 5-year statutes cited above are statutes of limitation as to the cause of action or the right to rebring a dismissed complaint. See, City of Chamblee v. Village of North Atlanta, 217 Ga. 517, 522(3, b), 123 S.E.2d 633. See, Allstate Ins. Co. v. Dobbs, 134 Ga.App. 225, 213 S.E.2d 915, decided March 10, 1975.

2. Where, as in the present case, the deposition of the insurance agent who issued the policy was such as to authorize, if not demand, a finding the premium due on March 2, 1964 (a statement of which was mailed to the named insured with the policy, in the amount of $43.10) was paid to the insurer by the agent prior to the mailing of a notice of cancellation for nonpayment of premiums and no further premium was due until June 2, 1964, a jury upon a trial would be authorized to find that the insurer was not authorized to cancel the policy for nonpayment of premiums at the time the notice of cancellation was mailed to the insured (Canal Ins. Co. v. Lawson, 123 Ga.App. 376(1), 181 S.E.2d 91) and that the policy remained in force until the next payment on the premium was due June 2, 1964, and was in force at the time of the automobile collision on May 17, 1964, out of which the present action on the policy ultimately arises.

3. Because this case in being reversed and the evidence as to receipt of the premium payment by the insurer may be different upon the trial (if records are introduced) and not depend solely on the testimony of the issuing agent, and because there is a seeming conflict of decisions on the matter by this court, we deem it advisable to review the question of whether evidence of lack of receipt of the notice mailed is evidence that it was not mailed, where the mailing is shown by direct testimony thereof and by direct testimony, it is shown the official Post Office receipt tendered in evidence was given therefor.

First, let us examine the language of the policy and the statute. The policy reads: 'This policy may be cancelled by the Company by mailing to the insured named in Item 1 of the declarations at the address shown in this policy written notice stating when not less than ten days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice. The time of the surrender or the effective date of cancellation stated in the notice shall become the end of the policy period. Delivery of such written notice either by such insured or by the Company shall be equivalent to mailing.' The provisions of the policy comport with the provisions of the Code Ann. Section 56-2430, which, so far as this question is concerned, has not been materially changed since its adoption in 1960 (Ga.L.1960, pp. 289, 671), as Code Ann. Section 56-2430. That Section reads in part as follows: 'Cancellation of policy which by its terms and conditions may be cancelled by the insurer shall be accomplished as prescribed herein: Written notice, stating the time when the cancellation will be effective, but not less than five days from date of notice, or such other specific longer period as may be provided in the contract or by statute, may be delivered in person, or by depositing such notice in the United States mails to be dispatched by at least first class mail to the last address of record of the insured and receiving therefore the receipt provided by the United States Post Office Department.' Cancellation is thus accomplished in two ways, (1) by mailing the notice of cancellation in the manner described and receiving a Post Office receipt for that mailing; or (2) by delivery in person to the insured. If the cancellation is attempted by mailing the notice, the mailing constitutes notice to the insured of the cancellation at the time prescribed in the notice, and the subsequent failure of the Post Office to deliver the notice has no effect on the cancellation and the insurer is not required to prove actual receipt of the notice by the insured. This is also true under the provisions of the policy here which conforms to the statute. See, St. Paul Fire & Marine Ins. Co. v. C.I.T. Corp., 55 Ga.App. 101, 189 S.E. 390; Genone v. Citizens Ins. Co. of New Jersey, 207 Ga. 83, 60 S.E.2d 125; Davis v. Travelers Indemnity Co., 94 Ga.App. 102, 93 S.E.2d 810; Queen Ins. Co. of America v. Nalley Discount Co., 215 Ga. 837, 114 S.E.2d 21; Allstate Ins. Co. v. Cody, 123 Ga.App. 265, 180 S.E.2d 596; Ga. Farm Bureau Mut. Ins. Co. v. Gordon, 126 Ga.App. 215, 190 S.E.2d 447; Garner v. Government Employees Ins. Co., 129 Ga.App. 235, 199 S.E.2d 350; Bituminous Casualty Co. v. Renfroe, 130 Ga.App. 621, 204 S.E.2d 317.

It is our opinion, therefore, that the statute and the terms of the policy make the receipt of the Post Office Department conclusive proof of the mailing when by direct testimony it is identified as the receipt given for that particular mailing containing the notice of cancellation. Since the statute in effect says that mailing is delivery of the notice to the insured, it has the same effect as actual delivery to the insured. It follows that such proof of mailing by the directly identified Post Office receipt is proof of delivery, and proof of actual delivery is not necessary. In other words, proof of the subsequent failure of the Post Office Department to deliver the mails is not proof of nondelivery of the notice as delivery was legally effected by the act of mailing and securing the Post Office receipt. This is somewhat analogous to the law of sales; delivery to the carrier is delivery to the buyer. That the carrier does not make delivery is insufficient to raise an issue that delivery was not made to the...