When an automobile liability insurance policy provides, as a condition precedent to the insurer's liability, that, when the insured's automobile is involved in an accident, the insured shall give notice of the accident to the insurer as soon as practicable, and if the insured is sued as a result of such accident, the insured shall immediately forward to the insurer every demand, notice, summons, or other process received by him or his representative, the insurer (in the absence of facts showing waiver by or estoppel against the insurer) is entitled to notice from the insured of an accident involving his automobile, and, thereafter, notice of any suit filed against the insured arising out of such accident before the insurer can be held liable under the policy.
The defendant in error (hereinafter referred to as plaintiff) brought suit against William A. Harper, the insured, for damages sustained as a result of a collision between the insured's automobile and the plaintiff's pickup truck on January 11, 1959. The defendant (the insured) made no defense, and upon trial of the case, a verdict was rendered against the defendant (the insured) for $20,000.
Thereafter, the plaintiff initiated the present suit against the insured's liability carrier. The plaintiff attached, as exhibits to his petition, a copy of his original suit against the insured, copies of the verdict and judgment, and a copy of the insurance contract between the insured (the defendant in the first action) and the insurance company (the defendant in the instant case). The pertinent portions of the policy, insofar as applicable to the questions involved in this appeal, are as follows: "1. Notice of Accident-Coverages A, B and C: When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the insured and of available witnesses. 2. Notice of Claim or Suit-Coverages A and B: If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative . . . 7. Action Against Company-Coverages A and B: No action shall lie against the company, unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company . . ." The following, designated as an "endorsement," is a part of the policy: "2. The policy shall apply only while the vehicle described in the policy is manually operated by Sp/5 William A. Harper personally, or, manually operated personally by an adult member of the named insured's family residing in the named insured's household."
The plaintiff's action against the insured was in two counts. Count one alleged that the insured was negligently driving his automobile when the collision occurred. Count two alleged that one Thomas H. Davidson was negligently driving the insured's automobile at the direction and under the control of the insured when the collision occurred.
The insurer filed an answer, in which it admitted that an insurance adjustor had investigated the accident, and during the course of the investigation, the adjustor obtained a statement from the insured that he was not driving his automobile when the collision occurred, and the adjustor was informed by the Military Police of Fort Benning who investigated the collision that the insured was not driving; that the first notice the insurer had of the accident was a letter, dated April 28, 1959, from the plaintiff's attorney, J. Walter Owens, who is not the plaintiff's present counsel (plaintiff was represented by present counsel in the filing and prosecution of the action against the insured and the present suit against the insurer); that the insurance company denied liability prior to the institution of the suit against the insured upon the ground that the insured was not the driver of the automobile at the time of the collision. The answer further avers that the insurer is not liable upon the grounds that the insured was not the driver of the automobile in question and that the defendant was not and is not liable because the insured failed to give notice of the pending suit to the insurer in compliance with a condition of the policy and did not "forward to the defendant the copy of the petition, process, nor any other documents related to" the suit by the plaintiff against the insured as required by the policy.
Interrogatories of the insured were taken, and he testified that Thomas H. Davidson was driving the vehicle at the time of the collision; that he gave a verbal report of the accident to one of the defendant's agents; he further testified as follows: "10. Did you notify . . . [insurer] or any agent representing it that a suit had been filed against you by . . . [plaintiff]? A. I don't know for sure . . . 12. Did you turn over the copy of the petition which was served on you in the suit against you by . . . [plaintiff] to . . . [insurer] or any agent representing it? A. I showed the petition to an agent, but did not give them a copy. 13. If the answer to interrogatory number 12 is affirmative, please state when, where, to whom and by what means you turned over such papers. A. Showed the petition to R. M. Wall in his office in Columbus, Georgia about June or July 1959." Upon cross interrogatories the plaintiff testified: "4. Did you call R. M. Wall and/or R. M. Wall Company and tell him you had been sued? A. Yes. 5. Is this the same person from whom you secured the insurance? A. Yes . . . 15. Did you notify the . . . [insurer] that had your insurance about the suit by calling their agent in Columbus, Georgia? A. No--saw him personally. 16. How long after suit was served on you, was it before you notified him? A. The same day."
An affidavit of R. M. Wall appears in the record in which he stated that he was the proprietor of R. M. Wall Company; that said company as agent for the insurer, issued the liability policy in question; that he did not have any personal knowledge or receive notice of the suit filed by the plaintiff against the insured; and that, so far as he knew, none of his employees or servants had received any notice of the suit.
Also appearing in the record is an affidavit of Walter E. Haygood, in which he stated that he was the manager of Brewer Adjustment Company, and that he customarily acted as adjustor for the insurer; that he, at the direction of the insurer investigated the accident between a vehicle owned by the insured and a vehicle owned by the plaintiff; that he met with the insured and took his statement, a copy of which was attached to the affidavit, in which statement the insured said "that his vehicle was being driven by Thomas H. Davidson at the time of the collision;" that he talked with Walter Owens, attorney for the plaintiff, and that Owens made no claim that Harper was in fact driving; that he informed Owens that the insurer considered that it had no coverage of this accident because the insured was not personally driving the car; that Owens agreed that this position was correct; that Owens indicated to him that he would either drop the claim or attempt to get a small amount for the plaintiff from Davidson; that he reported the foregoing facts to the insurer, and that he received no notice and had no knowledge of the suit filed by the plaintiff against the insured until about November 11, 1960 (which was after the plaintiff had obtained the judgment against the insured), when the insurer's attorney discussed the case with him.
The plaintiff submitted his affidavit in which he stated that the insured's automobile struck the rear of his pickup truck causing the injuries for which he sued for damages; that just prior to the collision the plaintiff "glimpsed" the insured's car "in his rear view mirror and saw the driver"; that after the collision the insured stated that he was the driver of the automobile. He further stated that the insured was the same person that he had seen through his rear view mirror. He further stated that both the insured and Davidson were drunk.
There is no contention that Davidson is a member of the insured's family.
The plaintiff filed a general demurrer to the defendant's answer which was sustained. Thereafter the plaintiff filed a motion for a summary judgment against the insurer, which motion was granted.
In this appeal error is assigned upon the ruling of the court on the demurrer and the ruling on the motion for summary judgment.
As both questions raise essentially the same questions, we will treat them together in discussing the merits of the assignments of error.
In order to hold the insurer liable for damages under the policy, provisions of the policy place upon the insured the duty of complying with two conditions: first, to notify the company of the accident, and second, to forward to the insurer every demand, notice, summons, or process received by him or his representative. The purpose is to inform the insurer of the occurrence of the two events. See Public Nat. Ins. Co. v. Wheat, 100 Ga. App. 695 (112 SE2d 194)
In the instant case the insured testified that he gave actual notice of the suit brought against him to an agent of the insurer by showing the petition to R. M. Wall. R. M. Wall made an affidavit that he was not notified of such suit. A clear fact issue was presented for the jury, which cannot be determined on motion for a summary judgment. See Caldwell v. Mayor &c. of Savannah, 101 Ga. App. 683 (115 SE2d 403)
; Scales v. Peevy, 103 Ga. App. 42 (118 SE2d 193)
The answer of the insurance company shows no facts which, in any way, infer that the company had knowledge of the suit brought by the plaintiff against the insured prior to the trial thereof.
The plaintiff contends that, the defendant has waived the conditions of the policy and is estopped to assert them as a defense. Ordinarily, questions of waiver and estoppel are matters to be determined by a jury. We do not intimate that there are any facts before us to show a waiver or estoppel. See New York Underwriters Ins. Co. v. Noles, 101 Ga. App. 922 (115 SE2d 474)
The plaintiff contends that Public Nat. Ins. Co. v. Wheat, 100 Ga. App. 695
, 700 supra, is controlling. However, in that case it was said: "The uncontradicted evidence in the case at bar discloses that the insured gave the company actual notice of the pendency of these suits, together with a copy of the pleadings therein, in ample time to allow it to participate in the defense." (Emphasis added). In the present case the defendant averred that it was never informed of the action brought by the plaintiff against the insured, and that the insured did not forward to the insurer the copy of the petition, process, or any other document relating to the action by the plaintiff against the insured. Thus, the Wheat case is distinguish able upon its facts.
The allegations of the answer presented an issuable defense. The evidence, being in conflict as to whether the insured notified the insurer that the suit was pending, presented an issue for the jury's determination. The court erred in sustaining the general demurrer to the defendant's answer and in sustaining the motion for summary judgment.