Public Nat. Ins. Co. v. Wheat, s. 37916
| Decision Date | 17 November 1959 |
| Docket Number | No. 1,Nos. 37916,37929,s. 37916,1 |
| Citation | 100 Ga.App. 695,112 S.E.2d 194 |
| Parties | PUBLIC NATIONAL INSURANCE COMPANY v. Clarence WHEAT. Clarence WHEAT v. PUBLIC NATIONAL INSURANCE COMPANY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. This is an action ex contractu within the jurisdiction of the Civil Court of Fulton County.
2. The allegations of the petition as to the giving of notice by the insured under the policy are not subject to the general and special demurrers.
3. The evidence of compliance with the plicy provisions as to notice is sufficient.
4. The overruling of the demurrer relating to Forms SR-22 and SR-26 filed with the Department of Public Safety by the insurer and their admission into evidence was not prejudicial in this case.
5. The defendant insurer, who had ample notice of the suits against the insured and elected not to defend them, is not entitled in the present action to relitigate the issue of whether the insured was the driver of his car, which was necessarily adjudicated in the previous litigation.
6(a). The allegations seeking recovery of attorney's fees are not subject to demurrer.
(b, c). The court did not err in admitting the plaintiff's evidence in support of his claim for attorney's fees, or in refusing to admit the evidence offered by the defendant.
7. There was no prejudice to the defendant in the charge as to the burden of proving certain affirmative allegations in its answer.
8. The charge as to consideration by the jury of conflicting evidence is not prejudicial to the defendant.
9. While the question of sufficiency of notice given under the policy is for the court, the submission of this issue to the jury did not prejudice the defendant under the circumstances of this case.
10. There was no prejudice in the charge as to consideration of Form SR-22 by the jury.
11. The charge on the subject of attorney's fees was justified by the evidence.
12. The court did not err in excluding certain testimony as to the nature of the plaintiff's injuries.
13. The court did not err in denying the amended motion for a new trial.
Clarence Wheat, who is the plaintiff in this case, and his wife filed their actions in the Superior Court of Cobb County in 1954 against M. H. Oliver, seeking to recover damages for injuries sustained by them in a collision with Oliver's automobile on September 5, 1954. These cases were tried before a jury which returned verdicts of $10,566 and $21,000 respectively. Judgments entered against Oliver for these amounts were unsatisfied. Thereafter, Mrs. Wheat assigned her claim to her husband, who, on January 6, 1958, filed the present action in the Civil Court of Fulton County against Public National Insurance Company, seeking to recover the sum of $10,550 under a policy of liability insurance issued by the defendant company to M. H. Oliver, which was in effect at the time of the accident, plus interest and attorney's fees. The general and special demurrers of the defendant company and its plea to the jurisdiction were overruled and the case proceeded to trial before a jury which returned a verdict in favor of the plaintiff in the full amounts sued for. Defendant's motion for a judgment n. o. v. and its amended motion for a new trial, were denied. The defendant excepts to the several rulings of the court adverse to it and the plaintiff by cross-bill of exceptions assigns error on the overruling of certain of its demurrers to the defendant's answer.
Nall, Miller, Cadenhead & Dennis, B. Carl Buice, Atlanta, for plaintiff in error.
Frank D. Holcomb, J. B. Headrick, Hamilton Lokey, Atlanta, for defendant in error.
1. It is first contended by the defendant company that the Civil Court of Fulton County does not have jurisdiction since this is essentially an action for personal injuries. That court has 'jurisdiction to try and dispose of all civil cases of whatever nature, except injuries to the person or reputation, concurrent with the superior courts.' Ga.L.1956, pp. 3271, 3277. In the absence of policy provisions to the contrary one who suffers injury is not in privity of contract with the insurer under a liability insurance policy and cannot reach the proceeds of the policy for the payment of his claim by an action directly against the insurer. See Perkins v. Publix Theatres Corp., 47 Ga.App. 641(7), 171 S.E. 147; 46 C.J.S. Insurance § 1191a. The nature of the injured plaintiff's action against the insurer must be determined from the policy itself, which provides: (Emphasis added). This is not a case in which the basis of the action is injuries to the person, as in Cantrell v. Davis, 176 Ga. 745, 169 S.E. 38 and National Surety Corp. v. Boney, 215 Ga. 271, 110 S.E.2d 406. By the plain terms of the policy provisions under which the plaintiff's right of action arises, this is an action ex contractu and is therefore within the jurisdiction of the Civil Court of Fulton County.
2. Turning now to the pleadings, the defendant contends that the petition is subject to general and special demurrers for failure to allege how notice of the accident was given the company. The petition as amended alleged: Without further discussion, we hold that these allegations of notice were sufficient as against a general demurrer.
Special demurrers 8, 10, 11 and 12 challenging the above allegations as conclusions of the pleader and calling for plaintiff to allege 'where, in what manner or on what date' notice was given by the insured are without merit because it appears from the pleadings that this information is peculiarly within the knowledge of the defendant company and available to it. Farr v. McCook, 95 Ga.App. 749(3), 98 S.E.2d 584 and cases cited.
3. It is argued that the evidence is insufficient to show a compliance with the policy provisions relating to notice since the insured in his written report to the company stated that he was not driving his automobile at the time and it refused to defend the suits under an endorsement to the policy limiting the liability coverage to accidents which occur while the insured is personally driving his automobile. The purpose of notice is to enable the insurer to inform itself promptly concerning the accident, so that it may investigate the circumstances, prepare for a defense, if necessary, or be advised whether it is prudent to settle any claim arising therefrom. 5A Am.Jur. 150, 'Automobile Insurance' § 151. The insured gave the following written report of the accident 5 days thereafter to the company's representative: This was sufficient to acquaint the insurer with the occurrence of the accident so as to allow it to avail itself of all the rights of investigation and defense which this provision of the policy was intended to preserve. In giving notice...
To continue reading
Request your trial
-
Muncie v. Travelers Ins. Co.
...4 Cir., 37 F.2d 550; A. Perley Fitch Co. v. Continental Ins. Co., 99 N.H. 1, 104 A.2d 511, 49 A.L.R.2d 156; Public National Ins. Co. v. Wheat, 100 Ga. App. 695, 112 S.E.2d 194; Segal v. Aetna Casualty Co., 337 Mass. 185, 148 N.E.2d 659; American Fidelity Co. v. Hotel Poultney, 118 Vt. 136, ......
-
Richmond v. Georgia Farm Bureau Mut. Ins. Co.
...132 Ga.App. 714(1), 209 S.E.2d 6, supra; Employees Assurance Society v. Bush, 105 Ga.App. 190, 123 S.E.2d 908; Public Nat. Ins. Co. v. Wheat, 100 Ga.App. 695(3), 112 S.E.2d 194. In many cases, as in this one, the notice condition is expressly made a condition precedent to the insurer's cove......
-
Clarke v. Unum Life Ins. Co. of America
...Express Sys. Inc. v. Southern Guar. Ins. Co., 224 Ga.App. 697, 701, 482 S.E.2d 433, 436 (1997) (quoting Public Nat'l Ins. Co. v. Wheat, 100 Ga.App. 695, 698, 112 S.E.2d 194 (1959)). Timely notice is considered a "condition precedent to the insurer's duty to defend or pay." Equitable Life As......
-
Florida Intern. Indem. Co. v. City of Metter, Ga., 90-8302
...for payment of his claim by means of an action directly against the insurer." (citations omitted)); Public Nat'l Ins. Co. v. Wheat, 100 Ga.App. 695, 112 S.E.2d 194, 197-98 (1959) ("In the absence of policy provisions to the contrary, one who suffers injury is not in privity of contract with......