New Zealand Fire Insurance v. Brewer , 29 Ga. App. 773 ( 1923 )

Bell, J.

The defendant in error brought a suit in the city court of Sandersville against the plaintiff in error (hereinafter called the company or the insurer) upon a policy of insurance, for the amount of the policy, and for interest, attorney’s fees, and damages, alleging the loss by fire of the property insured, the furnishing of “ proofs of loss,” and a compliance with all of the terms and conditions of the policy by the assured .(paragraph 5 of the complaint). A copy of the policy attached to the complaint contains stipulations that proofs of loss should be submitted within sixty days from the fire, that the policy should not be payable until the lapse of sixty days from the time such proofs were furnished, and that no suit could be maintainable until all the requirements of the policy were complied with, nor unless commenced within twelve months from the date of the fire. There was no stipulation that the policy should become null and void for a failure to furnish proofs in the stipulated time. The contract included also the usual “ iron-safe ” clause. The defendant filed an answer denying the material allegations of the complaint. No written demand for a trial by jury was made, by either party. The case was tried at the first term, in accordance with the act creating the court (Ga. L. 1901, p. 164, sec. 38). A verdict and judgment were rendered on July 28, 1921, for the plaintiff, for the principal, interest, attorney’s fees, and damages. The insurer was not present at the trial, either by counsel or any other representative.

Thé following appears by reference to .the petition: The loss occurred on March 3; the proofs of loss were furnished on June 6; the filing of the suit was on July 5th; all in the same year. In the paragraph counting for attorney’s fees and damages it is alleged that the assured demanded payment of the policy more than sixty days before the bringing of the suit, “ and that'the defendant company has stubbornly refused to pay said loss, and in said refusal to pay said loss . . . has acted in bad faith.” Thereafter the insurer filed a petition for certiorari, containing in effect the following assignments of error (among others in no wise insisted upon in the briefs in this court) : (a) that the verdict and judgment were erroneous for the reason that the case should have been tried by the judge without submission to a jury, since no written demand had been made by either party for a trial by jury; (&) that the verdict and .judgment (as a whole) were contrary to law because no cause of action was alleged, and because the verdict was not supported by the evidence; (c) that the recovery for attorney’s fees and damages was erroneous for being without evidence to support it. The writ was answered by the judge before whom the trial occurred, and thereafter the certiorari was overruled. The company excepted. Paragraphs 5 and 8 of the complaint were as follows:

“ 5. Petitioner further shows that on the 6th day of June, 1921, petitioner furnished the defendant company with a proof of loss under said policy and otherwise performed all the conditions imposed upon him by said policy.”

“ 8. Petitioner further shows that more than sixty days have elapsed since the demand was made by petitioner upon the defendant company for the payment of the loss covered by said policy of insurance, and that the defendant company has stubbornly refused to pay said loss, and that in said refusal to pay said loss the defendant company has acted in bad faith; that petitioner has been forced to incur an expense of $250 as attorney’s fees for the prosecution of the case against said defendant company, and that the defendant company has made itself liable for damages in the sum of 25 per cent, of the amount of said policjq and an additional sum of $250 for attorney’s fees for the prosecution of said case.”

So much of the answer to the certiorari as is here material was as follows: “ Allegations in paragraphs 1 and 2 are true. Prior to the July term of city coirrt of Sandersville the above-stated case was regularly set for hearing on the day and date when all other cases triable at said term were set for hearing, this case being set down for trial on the 15th day of July, 1921. On said date the court did sound the docket of all cases. When the above-stated case was reached in its regular place on the docket Mr. A. W. Evans, of counsel for the plaintiff, announced ready for plaintiff; there was no appearance for the defendant. The court inquired of Mr. Evans whether he wanted a jury trial, and he stated that he did, whereupon a jury was regularly empannelled, the plaintiff offered testimony in support of each of his allegations in the petition, showing the contract, the -fire, and the destruction by fire of the property, the demand upon the defendant for a settlement of the loss occasioned as aforesaid and also the documentary evidence attached to petition for certiorari. The court is absolutely unable to give in detail the testimony, for the reason that at said term of court, as well as the succeeding ones, the court tried'a large number of cases, and to reproduce the testimony in each, or any specified case, is a matter of impossibility.” The “ documentary evidence ” mentioned in the answer is the letter of June 13, .to which reference is made in the syllabus.

It is not necessary to add anything further to the syllabus.

Judgment affirmed on condition.

Jenkins, P. J., and Stephens, J„ concur.