Royal Ins. Co. v. Cohen, 39403

• Decision Date: 11 April 1962
• Docket Number: No. 39403,No. 3,39403,3
• Citation: 105 Ga.App. 746,125 S.E.2d 709
• Parties: ROYAL INSURANCE COMPANY, Limited, v. Helen L. COHEN
• Court: Georgia Court of Appeals

Page 709

125 S.E.2d 709

105 Ga.App. 746

ROYAL INSURANCE COMPANY, Limited, v. Helen L. COHEN.

No. 39403.

Court of Appeals of Georgia, Division No. 3.

April 11, 1962.

Conyers, Fendig, Dickey & Harris, Chris B. Conyers, Brunswick, for plaintiff in error.

W. N. Little, Brunswick, for defendant in error.

Syllabus Opinion by the Court.

CARLISLE, Presiding judge.

1. Where the policy of fire insurance sued on contained only a general provision relating to avoidance of the policy on account of concealment or fraud by the insured and where it did not contain any provision expressly voiding it if the insured property should be mortgaged without the consent of, or without notice to the company, and where the policy was issued with a mortgage cause showing that the loss, if any, on the insured property would be payable to a named mortgagee, the fact that the insured, after the issuance of the policy and prior to the loss, borrowed a sum of money from a lender other than the mortagee named in the policy and paid off the named mortgagee and gave the new lender a deed to secure debt on the property, did not show a wilful concealment or misrepresentation of any material fact by the insured within the meaning of the policy. (See Hosford v. Germania Fire Ins. Co., 127 U.S. 399, 8 S. Ct. 1199, and 32 L.Ed. 196); Universal Ins. Co. v. Arrigo, 96 Colo. 531, 44 P.2d 1020; Taylor v. Aetna Ins. Co., 120 Mass. 254(2); 45 C.J.S. Insurance § 532 a, p. 262), and the trial judge did not err in overruling the motion for a judgment n. o. v. on the ground that the evidence showed that the policy was void because the plaintiff had made material misrepresentations or concealments of fact.

2. Where, on the trial of a suit on a fire insurance policy, the plaintiff testified that the original policy had been lost in the fire, and where the defendant introduced in evidence merely a blank policy form which the plaintiff testified did not look like the policy originally issued to her, it was not error for the court to instruct the jury that the burden was on the defendant to establish that the provisions of that form were the same as those contained in the original policy issued to the plaintiff, and that the original policy required that the plaintiff furnish a sworn proof of loss stating certain particulars with respect to the loss and such charge was not error as against the contention that it was an expression or intimation of opinion by the court, that there was valid evidence upon which the jury could base a finding that the copy of the policy introduced by the defendant was not a true or correct copy of the original policy, and this is true notwithstanding that the agent who issued the policy to the plaintiff on behalf of the defendant testified that to his knowledge there had been no changes in the form since the time the policy sued on was issued.

3. The term 'bad faith,' as used in Code § 56-1206 (Ga.L. 1960, pp. 293, 502), means any frivolous and unfounded refusal in law or in fact to comply with the demand of the policy holder to pay according to the terms of the policy. American Fire & Casualty Co. v. Barfield, 81 Ga.App. 887 (3), 60 S.E.2d 383. The burden of showing bad faith is on the plaintiff, and in order to carry this burden it is incumbent upon the plaintiff to introduce evidence showing bad faith. Pearl Assurance Co. v. Nichols, 73 Ga.App. 452, 455(5), 37 S.E.2d 227; Life & Casualty Ins. Co. v. Freemon, 80 Ga.App 443, 56 S.E.2d 303. Where it appears from the evidence that the defendant's refusal to pay was justified on the basis of the facts appearing to the defendant at the time of the refusal, bad faith is not shown (Georgia Life & Health Ins. Co. v. Gammage, 91 Ga.App. 125, 128(1), 85 S.E.2d 85), and if the evidence can be said to have authorized a finding in accordance with the contentions of the defendant, a finding of bad faith is not authorized. Southern Ins. Co. v. Ray, 40 Ga.App. 262(2), 149 S.E.304; Guaranty Life Ins. Co. v. Martin, 44 Ga.App. 545(2), 162 S.E. 288. In the instant case the plaintiff sought recovery on a policy of fire insurance...