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COTTON STATES MUTUAL INSURANCE COMPANY v. CLARK.
42264.
Action on insurance policy. Dade Superior Court. Before Judge Coker.
NICHOLS, Presiding Judge.
1. The motion to dismiss the appeal is overruled.
2. Where a policy of insurance provides for primary coverage and then limits or abates such primary coverage any contention of the insurer that the limited coverage is applicable is a matter of defense and may not be raised by demurrer.
3. Where on the trial of the case it appears that information sought by special demurrer was in the hands of the demurrant, any error in overruling such special demurrer is harmless.
4. Where witnesses testify as to the facts on which "value" is based, it is not error to permit them to testify as to such "value."
5. The trial court did not err in admitting documentary evidence.
6. The trial court did not err in giving in charge the provisions of Code Ann. 56-2427.
7. The enumerations of error complaining of the charge given, as well as the refusal to charge, on the measure of damages show no error.
8. The evidence authorized the verdict, and the trial court did not err in overruling the defendant's motion for judgment non obstante veredicto.
A. J. Clark sued Cotton States Mutual Insurance Company on a policy of fire insurance covering described property where the plaintiff operated a service station under a ten-year written lease. The petition alleged that the "building" was constructed by the plaintiff, that the contents of the building were owned by the plaintiff, that before the contract of insurance was entered into between the plaintiff and the defendant the plaintiff fairly and fully disclosed to defendant's agent, Harold Stephens, the nature and character of his interest in the property insured and disclosed that he was a lessee holding a leasehold interest in the land, that thereupon the policy of insurance was delivered to the plaintiff, that both at the time of the issuance of the policy and at the time of the fire loss plaintiff had an insurable interest in the property, that the defendant is an insurance company engaged in writing policies insuring against losses by fire in Georgia, that a copy of the policy is attached to the petition as exhibit A and made a part of the petition, that under the terms of the policy the defendant agreed to pay plaintiff the actual cash value of the property at the time of the loss but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after the loss, that a fire loss occurred on November 5, 1964, while the policy was in force, destroying personal property having a value of $1,549.06, that the cost of removal of such debris was $150, that the value of the building before the fire was $4,000, and after the fire $1,200, making the loss sustained by the fire $2,800, and that the defendant had failed to pay the amount of the loss although payment had been demanded. The petition as amended then alleged: "11. That plaintiff promptly gave notice of said fire to defendant's agent Harold Stephens, as prescribed by the terms and provisions contained in said policy. In response to said notice, Agent Stephens came to plaintiff's station the morning of the fire, and thoroughly inspected the burned building and contents. Said defendant's agent instructed plaintiff to separate the partially destroyed contents from the totally destroyed contents and to haul the latter debris to the city dump. He further instructed plaintiff to make out an inventory of all contents. Defendant's agent represented to, informed, and told the plaintiff that he was satisfied with the notice and inspection of the property and that the claim would be settled within a matter of days. Plaintiff following defendant agent's instructions hauled the debris to the city dump and made an inventory of the contents loss. 12. That defendant's agent Harold Stephens notified said defendant of the loss and in response to said notice, defendant sent to the scene one of its staff adjusters for the pur-
pose of adjusting said loss. That said adjuster arrived at the scene of the fire about five or six days thereafter and proceeded immediately to make an adjustment and investigation of said loss; that plaintiff furnished said adjuster all of the information requested or demanded. That said adjuster demanded that plaintiff furnish him with an estimate of the damage to the building which plaintiff promptly did by consulting a contractor to make an estimate of the damage to the building and plaintiff furnished said adjuster with a written inventory of the contents loss which was completed on November 11, 1964, and tendered to defendant's adjuster and has been retained by defendant ever since. Said defendant's adjuster led plaintiff to believe that by furnishing said information plaintiff's claim would be paid. That after furnishing defendant with the written itemized list of all damaged and destroyed contents and the actual cash value listed, defendant never furnished the plaintiff with proof of loss forms, as required by law and have therefore waived their right to demand proof of loss. 13. Defendant because of aforesaid facts is estopped from demanding proof of loss because it lulled its insured (the plaintiff) into a belief that his loss would be promptly paid. Therefore said defendant was and is estopped from asserting the failure to file a proof of loss as a defense to this matter. 14. Thereafter on December 18, 1964, defendant denied said loss and refused to negotiate a settlement of said matter and stated that it did not recognize any liability on its part because plaintiff did not own the building and had no insurable interest therein. That said claim was denied by the defendant and that as a result thereof, the plaintiff did not file proof of loss with the defendant. That defendant knew plaintiff had an insurable interest in the property and in a blatant effort to avoid its responsibility and liability, said defendant tendered with said letter an endorsement which attempted to delete the building coverage and back date its effective date to the original inception date of May 10, 1960. That defendant also tendered a draft made payable to the order of A. J. Clark in the amount of $64.95 which defendant stated represented plaintiff's full amount of the premium paid on the building since the inception date but actually is only a fraction of the amount paid. Said draft was dated December 18, 1964, and recited that it was not payable after ninety (90) days from date. Said draft was not cashed by plaintiff, is no longer negotiable because of the aforesaid limitation and is in possession of plaintiff. Plaintiff now tenders said voided draft into court to show good faith and to show that plaintiff has not cashed same. That said draft is hereto attached, marked 'Exhibit D' and is made a part of this petition. That aforesaid attempt to shirk its responsibility and avoid liability was a subterfuge and badge of fraud tainted with bad faith, because of the facts hereinbefore and hereinafter alleged. 15. Plaintiff shows as hereinafter alleged that though repeatedly requested to do so the defendant has failed and refused to pay to plaintiff the amount due to be paid under the terms of said policy. 16. That notwithstanding the refusal of defendant to settle said claim, and in face of their attitude and aforesaid conduct, plaintiff has fully complied with each and every item, condition and provision of said policy of insurance except where waived by defendant, where defendant is estopped as to asserting compliance, or where plaintiff has been prevented from complying by defendant, as heretofore and hereinafter alleged. 17. Plaintiff alleges that by defendant's refusal to pay said claim defendant has waived formal proof of loss. 18. Plaintiff shows that though repeatedly requested and demanded to do so over a period of approximately nine months, beginning within one week following said loss and continuing up to the present time, the defendant has failed and refused to pay plaintiff the amount due to be paid under the terms and provisions of said policy. Plaintiff shows that several oral demands, the first approximately one week after said loss occurred, and a second demand about one week thereafter, and numerous other demands within the following sixty days, continuing up to the present time, were made upon defendant insurance company for payment of said loss, all of which have been ignored and refused. 19. Plaintiff shows that the defendant refused to pay said loss hereinabove set forth within sixty days after the aforesaid demands were made by the plaintiff for such payment. Said payment was refused by the defendant in bad faith, it having no reason why payment should be delayed, the plaintiff having
complied with all the terms of said policy except where defendant's acts or omissions as heretofore alleged have waived compliance, prevented plaintiff from complying with same or resulted in an estoppel of same, and the plaintiff is entitled to recover of the defendant, in addition to the loss hereinbefore set forth, twenty-five (25%) percent of the liability of said company for said losses, and in addition thereto, reasonable attorneys fees in the sum of $3,243.75, for the prosecution of this case against the defendant, because of the failure of said company to pay said loss as herein alleged was malicious and wilfully done with intent to force plaintiff into unnecessary litigation and delay. 20. Plaintiff shows that by reason of said loss as herein alleged, the defendant is indebted to plaintiff in the sum of four thousand four hundred and nine dollars and six cents ($4,409.06) plus twenty-five (25%) percent penalty of one thousand one hundred and two dollars and twenty-seven cents ($1,102.27) and reasonable attorneys fees in the sum of $3,243.75, a total indebtedness of $8,775.08. Wherefore plaintiff prays: (a) That process do issue requiring said defendant to be and appear in the Superior Court of Dade County, Georgia, at the time and place and in the manner required by law to answer this complaint. (b) That plaintiff have and recover a judgment of four thousand four hundred and nine dollars and six cents ($4,409.06) for said loss, together with one thousand one hundred and two dollars and twenty-seven cents for bad faith, and $3,243.75 for reasonable attorneys fees. (c) That the cost of this suit be taxed against the defendant." The defendant filed special demurrers to the petition as originally filed as well as renewed and additional demurrers after the plaintiff amended. The trial court sustained some of the defendant's demurrers and overruled others. Thereafter, on the trial of the case the jury returned a verdict for the plaintiff, and on appeal the defendant enumerates as error the overruling of its demurrers as well as rulings made during the progress of the trial and excerpts from the court's charge.
1. The notice of appeal was from the judgment entered on the verdict rendered in the case and the record showing the date of such judgment is controlling rather than a conflicting date shown in the notice of appeal. Accordingly, the motion to dismiss is overruled.
2. The first special demurrer argued by the defendant is numbered 2 which contends that the allegation of the petition as to the method of determining the amount of the alleged loss is a conclusion not supported by the facts pleaded since a copy of the policy attached to the petition has a limitation as to liability in conflict with the allegations of the petition.
Under the decision in U. S. Fidelity &c. Co. v. Corbett, 35 Ga. App. 606 (134 SE 336), the stipulation providing that the coverage otherwise provided for was a subordinate provision, limiting or abating the primary liability, and must be raised by defensive pleadings and not by demurrer. Therefore, this ground of demurrer was properly overruled as were the grounds of demurrer alleging that the plaintiff had alleged an improper measure of damages. See also Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 315 (127 SE2D 454); and American Cas. Co. v. Parks-Chambers, 111 Ga. App. 568 (142 SE2d 275).
3. Under the decision in Assurance Co. of America v. Bell, 108 Ga. App. 766 (1) (134 SE2d 540), the allegations of Paragraph 13 of the petition as amended were not subject to the defendant's demurrers as being a conclusion not supported by the facts pleaded, nor was it reversible error to overrule the defendant's demurrers which sought the name of its agent who dealt with the plaintiff in the role of an adjuster, since on the trial this agent testified as a witness for the defendant and obviously the defendant was not harmed by the failure of the plaintiff to allege his name. See Old Colony Ins. Co. v. Dressel, 109 Ga. App. 465 (1) (136 SE2d 525); Tucker v. Colquitt County, 109 Ga. App. 627 (137 SE2d 87), and citations.
4. During the trial of the case the plaintiff testified as to the value of the building before and after the fire and a witness for the plaintiff, Grady Prince, testified as to the value before the fire and the amount of damage done by the fire. Both witnesses testified as to the facts on which their opinion was based. Thus the admission of such opinion evidence was not error as contended in enumerations of error 4 and 5, and the decision in Hoard v. Wiley, 113 Ga. App. 328 (147 SE2d 782), does not require a reversal as contended by the defendant but rather supports the plaintiff's position.
5. No error appears in enumerations of error numbered 6 and 7 which complain of the admission in evidence of two exhibits for the plaintiff. One was a letter written on the letterhead of the defendant wherein it denied that coverage existed on the building because the plaintiff had no insurable interest, and the other, a purported endorsement to the plaintiff's policy of insurance, dated after the loss, wherein the defendant attempted to remove coverage for the building from the inception of the policy.
"A letter received through the mails is not admissible in evidence when offered by the recipient, without proof of its authenticity ( Kent v. Wadley Southern Railway Co., 136 Ga. 857, 859, 72 SE 413); but proof of its execution may be shown by circumstantial evidence. Cocroft v. Cocroft, 158 Ga. 714 (124 SE 346); Williams v. Williams, 181 Ga. 493 (4) (182 SE 904)." Deaderick v. Deaderick, 182 Ga. 96 (1) (185 SE 89). Both the local agent and the adjuster for the insurance company testified that they were familiar with the letter and the local agent testified he was familiar with the purported endorsement. These facts plus the fact that the letter was on the letterhead of the defendant and the purported endorsement was on the defendant's form were sufficient circumstances to authorize the admission of such evidence.
6. The eighth enumeration of error complains that the trial court erred in giving the jury in charge Code Ann. 56-2427 which provides in part: "Failure or refusal to furnish such form [proof of loss] upon written request or written notice of a loss shall constitute waiver of the right of the insurer to require proof of loss." (Emphasis supplied.) Therefore, assuming that there was no original written notice of the loss yet where the insurance company sent an adjuster to adjust the claim and the plaintiff furnished him with a written inventory of the contents of the building allegedly destroyed by the fire and a written estimate of the cost of repairing the building, it cannot be said that there was no evidence of a "written notice of a loss." Therefore, the trial court's charge here complained of was authorized by the evidence.
7. Enumerations of error numbered 9 through 12 deal with the court's instructions with reference to the amount of recovery authorized by the policy on the building. Enumerations of error numbered 9 and 10 complain of excerpts from the charge given while 11 and 12 complain of refusal to give timely written requests of the defendant.
Under the decision in Farmers Mut. Fire Ins. Co. v. Harris, 50 Ga. App. 75 (2) (177 SE 65), followed in Farmers Mut. Fire Ins. Co. v. Pollock, 52 Ga. App. 603 (184 SE 383), no error is shown by these enumerations. The policy provided for coverage of the building in which the plaintiff had an insurable interest. It did not limit his recovery to the value of the leasehold, and there was evidence to show that the policy was issued with knowledge of such interest.
8. The plaintiff sought recovery for the loss of the building as well as the loss of contents and penalty and attorneys fees. On the trial of the case, at the conclusion of the evidence the defendant made a series of motions for directed verdict as to (1) the case as a whole, (2) the damage to the building and (3) the penalty and attorneys fees. These motions were overruled and after verdict and judgment the defendant filed a motion for judgment non obstante veredicto on the same grounds.
There was no evidence of a written demand, and the only conversation between the plaintiff and the adjuster after he refused to sign the "non-waiver" agreement was that the adjuster said, "Well, we won't pay you anything" to which the plaintiff replied, "Well, if you won't pay me I'll have to take you in court," and the adjuster responded, "I'll see you in court, Mr. Clark." This was a part of the conversation wherein the insurer refused payment, amounted to a demand, and took place more than sixty days before the action was filed. No particular language is necessary to constitute a demand, and the insistence of the plaintiff that he be paid even if it meant resorting to the courts after the adjuster informed him that the insurer would not pay him anything unless he signed a "non-waiver" agreement was a sufficient demand to comply with Code Ann. 56-1206.
Accordingly, this ground of the motion for a judgment non obstante veredicto is without merit. As has been previously shown the verdict for the damage to the building was authorized, and a jury question was presented as to the penalty and attorneys fees. Therefore, the trial court did not err in overruling the defendant's motion for a judgment non obstante veredicto.
Judgment affirmed. Deen, J., concurs. Hall, J., concurs specially.
Lindsey H. Bennett, Jr., George W. Adams, for appellee.
Robert Edward Surles, for appellant.
ARGUED SEPTEMBER 13, 1966 -- DECIDED SEPTEMBER 22, 1966 -- REHEARING DENIED OCTOBER 10, 1966.
Friday May 22 20:02 EDT


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