Jackson v. Motors Ins. Corp.
| Decision Date | 23 April 1958 |
| Docket Number | 2,No. 37092,Nos. 1,37092,s. 1 |
| Citation | 97 Ga.App. 658,104 S.E.2d 253 |
| Parties | Virgil JACKSON v. MOTORS INSURANCE CORPORATION |
| Court | Georgia Court of Appeals |
Syllabus by the Court
In an action on an insurance policy where the liability of the insurance company is undisputed it is usually a jury question as to whether the company was guilty of bad faith, as defined by Code, § 56-706, in failing to pay the plaintiff on such policy of insurance.
Virgil Jackson brought an action against Motors Insurance Corporation in which he sought to recover under a policy of insurance written by the defendant to cover, among other things, loss occasioned by fire to the plaintiff's automobile. The plaintiff also sought to recover the penalty and attorney's fees permitted in certain cases by Code § 56-706 when insurance companies, in bad faith, refuse to pay according to the terms of the policy. On the trial of the case held on October 14, 1957, the jury returned a verdict for the plaintiff in the amount of $500 as the amount due under the policy, plus a penalty of $125 and attorney's fees in the sum of $200. The defendant filed a motion for new trial on the usual general grounds which it later amended by adding certain allegations which it contended showed that the verdict was contrary to law and the principles of justice and equity. The trial court rendered a judgment denying the defendant's motion for new trial, provided the plaintiff would write off the penalty and attorney's fees before a day certain, otherwise the new trial was granted. The plaintiff did not write off the penalty and attorney's fees, and the exception here is to the grant of the new trial.
O. Frank Brant, Sylvania, for plaintiff in error.
Anderson & Trapnell, Metter, Howard & Hunter, Sylvania, for defendant in error.
1. At first glance it would appear that the plaintiff is excepting to the first grant of a new trial, which judgment would not be disturbed; however, upon an examination of the defendant's amended motion for new trial, which was approved by the trial court, it definitely appears that the trial on October 14, 1957 was the second trial of the case, and that the trial court had previously granted the defendant a new trial after the plaintiff had refused to write off the penalty and attorney's fees found for him by the jury. Therefore, the exception is to the second grant of a new trial for the defendant.
2. In Ansley v. Atlantic Coast Line R. Co., 86 Ga.App. 152, 155, 71 S.E.2d 434, 437, in considering the duty of the appellate courts in reviewing the grant of a second or third new trial to the same party, Judge Townsend said: 'The reviewing court must carefully investigate to determine if the discretion to grant a second or third new trial has been justly, wisely, and prudently exercised, for, while the trial judge may still exercise some discretion to set aside a second verdict in favor of the same party where the evidence is weak and unsatisfactory, or where it largely preponderates in favor of the losing party, he may no longer set aside the verdict merely because of conflicts in the evidence or because the considers the issue a close and doubtful one.' See also cases cited therein.
The judgment of the trial court granting the defendant's motion for new trial, if the plaintiff failed to write off the penalty and attorney's fees, is not based on the theory that the verdict in the principal amount sued for was unauthorized but, on the contrary, it states that such portion of the verdict was supported by the evidence. No exception was taken to this part of the judgment and the same will not be considered in detail. Therefore, the controlling question for decision is whether under the evidence adduced on the second trial, the trial held on October 14, 1957, the penalty and attorney's fees awarded the plaintiff by the jury were authorized by the evidence.
In support of its contention that there was no, or insufficient, evidence to support these items of recovery, the defendant, in its amended motion for new trial relies on alleged differences in the evidence adduced on the first trial and that adduced on the second trial, plus the fact that, without any prior notice being given it by the plaintiff, the plaintiff relied to a purported oral demand made to one of its employees who was not present at the trial, and presumably contends that, if it had had prior knowledge that the plaintiff was going to rely on such purported oral demand, it could have had this person available to testify that no such demand was made. There is no contention that the testimony of this person is newly discovered evidence, but as shown above it appears that the contention of the defendant is that it was surprised by the plaintiff's evidence and did not expect to need the testimony of this person, that such person was approximately 65 miles away from the site of the trial when the evidence which he could have disputed was presented, and that, if it had known that the testimony given was to be presented, it could have had the person present to refute it. Accordingly, since this does not present any question for decision, the sole remaining question is still whether the evidence adduced on the trial of the case authorized the verdict for the plaintiff.
The plaintiff presented evidence that the fire loss occurred a day or two prior to August 29, 1956, that a proof of loss was filed on August 29, 1956, and that on September 29 or 30, 1956 an oral demand for...
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