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Action on conditional sale contract. Baldwin Superior Court. Before Judge Carpenter.
DEEN, Judge.
Where the defendant in fi. fa. contended by affidavit of illegality to the levy that payment of the balance owing on the purchase price of an automobile had been paid by the insurer under a group creditor disability insurance policy, the burden was upon him to prove payment, and, in the absence of competent evidence to this effect, it was error after verdict for the defendant to overrule the plaintiff's motion for judgment notwithstanding the verdict.
D. W. Bearden, appellee and defendant in fi. fa., purchased an automobile on a conditional bill of sale calling for installment payments, executed June 12, 1961, and assigned to General Motors Acceptance Corp. The cost price included a charge of $26.06 for creditor disability insurance under a group policy which appellant held with Prudential Insurance Company, covering Bearden for any balance owing on the automobile if he became totally disabled. The group policy contained the following exclusion clause: "Benefits are not payable with respect to said obligation if total disability of the debtor (1) commences prior to the date on which the debtor becomes covered with respect to said obligation, or (2) commences on or after said date if the total disability results from any disease contracted or bodily injury sustained prior to said date and the debtor was totally disabled as a result of such disease or injury at any time during the six months period immediately preceding said date." The defendant became totally disabled, ceased his work and ceased making payments under the installment contract. There is some evidence in the record of a use action brought in the name of the policyholder, General Motors Acceptance Corp., against Prudential, but no showing of a recovery therein. Bearden had first filed a claim for disability benefits in August, 1961. After extended exchanges of letters, GMAC, on April 27, 1964, foreclosed its conditional bill of sale and thereafter levied a fi. fa. by virtue of the judgment obtained therein, as to which Bearden filed an affidavit of illegality based upon a plea of payment, contending that he had (which appellant admits) made all payments due through November, 1962, and also that payments due thereafter have been paid by the insurance company directly to the plaintiff in fi. fa., for which reason the defendant is not indebted. By agreement, the case went on trial on the sole issue of whether GMAC had been paid the balance due under the installment contract under the provisions of the group insurance policy. There is no doubt but that Bearden was in fact totally disabled from November, 1962, on, and there is considerable evidence in the record indicating that his disability was not such as to place him under the exclusion clause during the six-month period prior to the date of the rider adding his name to the group policy. However, as agreed between counsel and the court, the sole issue on the affidavit of illegality was whether the appellant had in fact been paid the balance owing after the date of total disability. A jury verdict for
Bearden was challenged by motions for judgment notwithstanding the verdict and for a new trial, both of which were denied.
There was direct testimony by the manager of appellant's company who was handling Bearden's disability claim that all disability claims cleared through him, that Bearden's claim had been rejected, and that the appellant had not been paid. Bearden offered testimony that he had a conversation with an unidentified employee in GMAC's Macon office where he went to see whether a letter written by his doctor on January 2, 1964, had been received, that the man told him that everything had been received, everything had been taken care of, and that everything was all right. Thereafter he said: "As I stated earlier, it was in February or March of '64 that I was in Macon and I went in there for that sole purpose. To see if they had received this report and if the insurance claims were being filed properly," and that the company demanded no money from him at that time. At another point in his testimony he was asked: "So when Mrs. Sloan wrote my son on November 30, 1963, in which she said that she was fixing to amend the suit against Prudential Insurance Company for the payments which had not been made, you knew that no payment had been made since you filed this suit on February 15, 1963, didn't you?" to which he replied in the affirmative. Construing any ambiguities in the plaintiff's testimony against him, as we must ( Southern R. Co. v. Hobbs, 121 Ga. 428 (1) (49 SE 294)), the plaintiff knew at the end of 1963 that the insurance company, which had previously denied the claim, had not changed its position and had made no payments. He testified to nothing which would have caused him to think the position had been changed between then and March, 1964; he went in to the office to see whether the creditor had received and forwarded a letter from his doctor which was a part of his effort to get the insurer to change its position; he asked whether the letter had been received and was told that "everything" had been taken care of. The "everything" logically refers to the preparation of the claim, not its payment. "The creditor shall not be designated as claim representative for the insurer in adjusting claims." Code Ann. 56-3310 (3). Therefore, the defendant's testimony as to what an employee of GMAC told him does not constitute proof that the insurer had in fact paid the claim, and the burden of proving this fact was upon him. Morrison v. Westbrook, 41 Ga. App. 201 (1) (152 SE 585). There is no other evidence tending to establish that the claim had been paid. It is to be noted that neither side produced any witnesses connected with the Prudential Insurance Company, which was not a party, on the question of whether or not it had paid the claim, nor was any explanation made by either as to this omission. Code 38-119 provides: "Where a party has evidence in his power and within his reach, by which he may repel a claim or charge against him, and omits to produce it, or, having more certain and satisfactory evidence in his power, relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim is not well founded; but this presumption may be rebutted." "Of course, in a case in which either party might have produced the witness, it would depend upon attendant facts and circumstances whether any inference prejudicial to either party would be raised by the failure on the part of one party rather than the other to procure the testimony of the absent witness." Southern R. Co. v. Acree, 9 Ga. App. 104 (1) (70 SE 352). The most that can be said in these circumstances is that the plaintiff was obviously relying on the testimony of its own employee that no payments had been received by it. Indubitably, the burden of proving payment was on the defendant, and, had he thought the testimony of agents of the insurer would tend to prove the claim had been paid it was incumbent on him to produce such testimony or account for its absence.
The trial court erred in overruling the motion for judgment notwithstanding the verdict.
Judgment reversed. Nichols, P. J., and Hall, J., concur.
Eva L. Sloan, for appellee.
Joseph B. Duke, Cubbedge Snow, for appellant.
Friday May 22 20:09 EDT

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