Simmons v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 24 May 1965
• Docket Number: No. 1,Nos. 41226,41227,s. 41226,1
• Citation: 143 S.E.2d 55,111 Ga.App. 738
• Parties: T. W. SIMMONS, Jr. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. T. W. SIMMONS, Jr
• Court: Georgia Court of Appeals

Page 55

143 S.E.2d 55

111 Ga.App. 738

T. W. SIMMONS, Jr. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. T. W. SIMMONS, Jr.

Nos. 41226, 41227.

Court of Appeals of Georgia, Division No. 1.

May 24, 1965.

Syllabus by the Court

1. Where a motion for summary judgment was heard by agreement 6 days after filing, it was not an abuse of discretion on the part of the trial court to deny the defendant's motion to disallow the plaintiff's affidavits in support of the response on the ground that they had not been served on opposing counsel prior to the date of hearing, especially where the defendant did not move for a continuance or show prejudice to its case resulting therefrom.

2. Where, following a collision loss, an insurer under the contention that it is electing to repair the damaged vehicle offers the insured a sum of money equal to the lowest repair estimate procured, but does not show by competent evidence that such sum of money will restore the vehicle to the condition and market value which it had prior to the collision, less deductible amount and depreciation normally ensuing during a reasonable time for repairs to be effected, it has failed to carry the burden of showing that there is no issue of fact as to the amount of its liability so as to entitle it to a summary judgment in its favor.

T. W. Simmons, Jr., filed an action against the defendant State Farm Mutual Automobile Insurance Co. under a policy of automobile collision insurance in which he alleged that the insured automobile had been damaged to the extent it was impossible to be repaired, that its market value before the collision was $2,095 and its salvage value $400, and that the defendant refused to pay the loss. The defendant answered and thereafter filed a motion for summary judgment contending that the automobile could be repaired, that it had exercised its option under policy provisions to repair the vehicle, and that it was liable only for the sum necessary to repair, which it tendered into court. A motion for summary judgment on the part of the defendant was subsequently granted by the trial court, and the plaintiff excepts.

Hatcher, Meyerson, Oxford & Irvin, Henry M. Hatcher, Jr., Atlanta, for plaintiff in error.

Powell, Goldstein, Frazer & Murphy, Edward E. Dorsey, Gregg Loomis, Atlanta, B. Hugh Burgess, Decatur, C. B. Rogers, Atlanta, for defendant in error.

RUSSELL, Judge.

1. Code Ann. § 110-1203 stipulates, as to motions for summary judgment: 'The adverse party prior to the day of hearing may serve opposing affidavits.' There may be situations where a failure to serve the opposing affidavits prior to the day of hearing will result in the trial court refusing with propriety to allow them to be filed, or situations where the court may allow them to be filed but in such event grant a motion for continuance. In general, the judge hearing the motion has a large discretion and 'may reduce or enlarge any time requirements prescribed herein for the filing of any documents or pleadings, or for the hearing date on any motion filed hereunder.' Code Ann. § 110-1207. In the present case the motion for summary judgment on behalf of the defendant was filed on December 10, 1964, and a rule nisientered for January 22, 1965. By agreement of the parties the hearing date was reset and moved up to December 16, 1964, resulting in a waiver of the 30-day period allowed for response. The trial court permitted the plaintiff to serve the defendant with his response and a set of supporting affidavits on the day of but prior to the hearing, overruled the defendant's motion to strike the affidavits as not having been filed in time, and also permitted the plaintiff to file two additional affidavits on the same day after the court had announced that he intended to render summary judgment for the defendant but before the order had been reduced to writing.

The oral announcement by the trial court of the manner in which he intends to rule is not a judgment until reduced to writing. Williams v. City of LaGrange, 213 Ga. 241, 98 S.E.2d 617; Salem v. Samuel, 102 Ga.App. 681, 117 S.E.2d 547. The court had a right to consider the amendment and additional affidavits at the time they were tendered. The refusal to strike the affidavits because they had not been served on a date prior to the hearing date, also, does not appear to be an abuse of discretion under the facts of this case. The defendant has made no showing that it was harmed, and did not move for a continuance on the ground of surprise or for any other reason. Since a summary judgment is a peremptory method of disposing of a case once and for all on its merits, courts will be cautious about foreclosing parties from a valid defense, and this we believe to be the plain meaning of Code Ann. § 110-1207. The assignments of error in the cross bill of exceptions are without merit.

2. The plaintiff's insurance contract covered loss due to collision with a deductible amount of $100, and contained provisions that 'the limit of the company's liability for loss shall not exceed the actual cash value of the property * * * nor what it would then cost to repair or replace such property with like kind and quality, less depreciation and deductible amount applicable. * * * The company may at its option pay for the loss in money or may repair or replace the property or such part thereof as aforesaid * * * or may take all or such part of the property at the agreed value but there shall be no...