Milwaukee Mechanics Ins. Co. v. Davis
Decision Date | 08 August 1952 |
Docket Number | No. 13849.,13849. |
Citation | 198 F.2d 441 |
Parties | MILWAUKEE MECHANICS INS. CO. et al. v. DAVIS. |
Court | U.S. Court of Appeals — Fifth Circuit |
Rembert Marshall, W. Neal Baird, Atlanta, Ga., for appellants.
Herbert Johnson, Atlanta, Ga., for appellee.
Before HOLMES, BORAH and RIVES, Circuit Judges.
The appellee agrees that, with one omission, the appellants' statement of the case is correct. Accordingly, that concise and accurate statement (but without its record references) is here quoted:
The one omission from the foregoing statement of the case noted by the appellee is
The district court found as facts that the insured incurred liability for attorney's fees in the amount of $1,500.00 for work in preparing and defending the personal injury actions filed against the insured and that such fees were necessary and reasonable; that the insured necessarily incurred liability for reasonable attorney's fees in defending the declaratory judgment action in the sum of $2,000.00.
In its conclusions of law, the district court said in part:
The policy is to be construed in accordance with the laws of Georgia; it was written in Georgia, to be performed in that State, and is being sued on in Georgia. See John Hancock Mutual Life Ins. Co. v. Yates, 50 Ga.App. 713, 179 S.E. 239, affirmed 182 Ga. 213, 185 S.E. 268, certiorari granted 299 U.S. 525, 57 S.Ct. 20, 81 L.Ed. 386, reversed 299 U.S. 178, 57 S.Ct. 129, 81 L.Ed. 106, reversed 184 Ga. 42, 190 S. E. 560, vacated 55 Ga.App. 771, 191 S.E. 392.
Georgia has certain statutes, Sections 56-706 and 20-1404 of the Code of Georgia, providing for the recovery of attorney's fees as expenses of litigation where a defendant has acted in bad faith or has been stubbornly litigious. With commendable candor the appellee's counsel stated to the trial court, and repeats here, that the appellee did not make out a case of bad faith or stubborn litigiousness on the part of the insurance company.
It seems to us, that the Georgia Court of Appeals has conclusively answered the contention that the attorney's fees incurred by the insured in defending the declaratory judgment action are damages flowing directly from the breach of the contract of insurance and recoverable as such. In the case of Maryland Casualty Co. v. Sammons, 63 Ga.App. 323, 11 S.E. 2d 89, 91, that court speaking through Judge Felton said:
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