St. Paul Fire & Marine Ins. Co. v. Postell

• Decision Date: 30 May 1966
• Docket Number: No. 42019,No. 3,42019,3
• Citation: 113 Ga.App. 862,149 S.E.2d 864
• Parties: ST. PAUL FIRE & MARINE INSURANCE COMPANY v. J. A. POSTELL et al
• Court: Georgia Court of Appeals

Page 864

149 S.E.2d 864

113 Ga.App. 862

ST. PAUL FIRE & MARINE INSURANCE COMPANY v. J. A. POSTELL et al.

No. 42019.

Court of Appeals of Georgia, Division No. 3.

May 30, 1966.

Rehearing Denied June 23, 1966.

Syllabus by the Court

1. A motion to dismiss on the ground that the enumerations of error all go to the verdict, none assigning error on the judgment, is denied where the appeal was from the judgment. The enumeration of errors may go to any matter affecting the judgment.

2. Whether there was bad faith in refusing an insured's demand for payment is to be judged by the case as made at the trial, and where the evidence would authorize a finding in accord with the contentions of the defendant a finding of bad faith is unauthorized.

3, 4. Where there is a conflict in the evidence as to the amount of the damage for which plaintiff would be entitled to recover and the verdict is within the range of the evidence, the verdict, having approval of the trial judge, will not be disturbed.

J. A. Postell and Postell Fluid Power Company brought suit against St. Paul Fire & Marine Insurance Company alleging that the roof of a house, insured by the company against loss by hail, had been damaged in a hailstorm on July 24, 1964, and that defendant had refused, in bad faith, to pay the loss on August 4 or 5, 1964. Recovery of $774.94 for replacement of the roof, $561.30 for damage to the walls and ceilings of rooms, and 25% penalty and $750 attorneys fees was sought.

After trial before a jury a verdict was returned for plaintiff for $965 as loss and damage, $241.25 as bad faith penalty, and $750 as attorneys fees, and judgment was accordingly entered December 3, 1965. A notice of appeal from the judgment was entered by the defendant January 21, 1966.

Appellees move to dismiss on the ground that the enumerations of error are directed to the verdict and in the statement of jurisdiction it is recited that the appeal is from the jury verdict.

Swift, Currie, McGhee & Hiers, Warner S. Currie, Albert E. Phillips, Atlanta, for appellant.

Alston, Miller & Gaines, Ronald L. Reid, Atlanta, for appellees.

EBERHARDT, Judge.

1. The motion to dismiss is denied. We are not confronted with the

question of whether, under the Appellate Practice Act of 1965, there may be an appeal from the verdict, for the notice of appeal specifically asserts that it is from the judgment. That having been done, appellant was free to enumerate as error any matter affecting the judgment.

2. The first enumeration of error is that the verdict for penalty and attorneys fees was, in view of the evidence at the trial, contrary to law and error.

We agree. It is too well settled to require citation of authority that bad faith means a frivolous or unfounded refusal to pay, that penalties are not favored and a clear right to recovery must be shown, the burden of showing bad faith being on the plaintiff. Whether there was bad faith is to be judged by the case made at the trial. Interstate Life &c. Co. v. Williamson, 220 Ga. 323, 138 S.E.2d 668. If the evidence is such that a finding in accordance with the contentions of the defendant would have been authorized, a finding of bad faith is not authorized. Royal Ins. Co. v. Cohen, 105 Ga.App. 746, 747, 125 S.E.2d 709.

There was a sharp conflict in the evidence as to whether the damage had resulted from hail. While plaintiff's evidence was that there was a hailstorm on July 24 and following it holes appeared in the roof permitting water to run through and damage ceilings, etc., there were witnesses experienced in construction, roofing, etc., who testified for the defendant that an examination of the roof a few days after July 24 revealed that the roof was of rolled roofing material, appeared to be 15 to 18 years old, completely worn out, that there was no evidence indicating hail damage, and that in their opinion the leaky condition of the roof resulted from its old, worn condition. There was also a conflict as to the amount of the damage, if there had been hail damage. Plaintiff's evidence indicated a cost of replacing the roof at from $456 to $774.60, while the defendant's evidence indicated that it could be done for $297. Plaintiff's evidence indicated that there was a cost of repairing damage to ceilings, etc., of $561.30, while defendant's evidence indicated a cost of only $207.70. These were questions for resolution by the jury, and they would have been authorized to find in accordance with the evidence of either party.

Certainly the defense here could not be said to fall short of showing reasonable and probable cause for making it, and in that situation it vindicated the good faith of the defendant as effectually as a complete defense to the action would have done. The award of penalty and attorneys fees was not authorized. Interstate Life &c. Co. v. Williamson, 220 Ga. 323, 325, 138 S.E.2d 668, supra....