135 Ga. App. 562 | Ga. Ct. App. | 1975
This case is an appeal from the decision and judgment of the trial judge to whom the case was submitted without the intervention of a jury on a complaint upon an insurance policy seeking recovery of the value of an automobile destroyed by fire. The insurer defended on the ground the policy had been canceled in
The defendant insurance company appealed, enumerating as error that the trial judge failed to make findings of fact and separate conclusions of law as required by Ga. L. 1969, pp. 645, 646, amending the Civil Practice Act, by enacting a "Code Section 81A-152” as amended by Ga. L. 1970, pp. 170, 171. This apparently was intended for Section 52 of the Civil Practice Act which had been left reserved in the original Act. Error was also alleged on the grounds that the appellant claimed that it was entitled to judgment as a matter of law based on the cancellation of the policy. Error was also enumerated on the failure of the trial judge in rendering the judgment
1. The evidence did not demand a finding that a notice of cancellation was in the envelope addressed to the insured. The witness who testified as to the mailing testified that three copies of the notice are made and that they are sent to him already placed in window envelopes attached to the file copy of the notice. There was no direct testimony that a notice of cancellation was in the envelope mailed. While the evidence as to office routine was amply sufficient to authorize such a finding, the evidence as to the denial of receipt of the notice in the absence of direct evidence the mailing contained the notice was sufficient to make a jury question as to the mailing of a notice of cancellation. See Harris v. U. S. Fidelity &c. Co., 134 Ga. App. 739 (216 SE2d 127); also Allstate Ins. Co. v. Cody, 123 Ga. App. 265 (2) (180 SE2d 596). Accordingly the evidence did not demand a finding that cancellation of the policy was accomplished prior to the destruction of the automobile by fire.
2. The State Court of Bibb County was formerly a constitutional court or like court known as the City Court of Macon (Ga. L. 1884-1885, p. 470) the name of which was changed to "State Court of Bibb County” by the Act of 1966 (Ga. L. 1966, p. 3302). By § 3 of the Act of 1970 (Ga. L. 1970, pp. 679, 680) the names of all courts of a similar nature were changed to "State Court of (whatever county in which the court is located) County.” In § 8 of that Act it was provided "The rules of practice and procedure that are applicable to the superior courts of this State shall be the rules which govern practice and procedure of the courts which come under the provisions of this Act.” The State Court of Bibb County being such a court as described in § 2 of the Act of 1970, § 8 of that Act is applicable thereto, and this being so the Act of 1969 (Ga. L. 1969, pp. 645, 656, as amended (Ga. L. 1970, pp. 170,171)) which provides "[i]n all actions in Superior Court tried upon the facts without a jury [with exceptions not here relevant], the court shall find the facts specially and state separately its conclusions of law thereon ...” applies to the State Court of Bibb County. Bell v. Stocks, 128 Ga. App. 799, 800 (198
The order, rulings and judgment of the trial judge fail to meet the requirements of the statutes. Donaldson v. Hopkins, 132 Ga. App. 713 (209 SE2d 131); Bituminous Cas. Corp. v. J. B. Forrest & Sons, Inc., 132 Ga. App. 714, 718 (2) (209 SE2d 6); Phillips &c. Corp. v. Production 70’s, 133 Ga. App. 765, 767 (2) (213 SE2d 35).
We accordingly, in conformity with prior decisions cited above, remand the case to the trial judge with direction that he prepare appropriate findings of fact and conclusions of law and enter judgment thereon taking into consideration any applicable deductible provisions of the policy sued upon and any proof as to premiums owed the defendants.
Judgment reversed and remanded with directions.