*1 for law, finding did not demand a the evidence applicable under the con- paid amount that the plaintiff the full trial Furthermore, judge indicated tract. as was motion for overruling judgment the plaintiff’s his order n.o.v., charge did not to the court’s except the plaintiff from it to find amount jury authorizing $1 $41,100 the plaintiff. for reasons, the trial did err over- judge
For above general motion for new on thе ruling defendant’s for n.o.v. grounds judgment and the motion plaintiff’s J., Evans, J., Judgments Bell, C. concur. affirmed. MUTUAL INSURANCE 46853. COTTON STATES v. PROUDFOOT. COMPANY from a appeal judgment This is an Per curiam. in a action to collect the amount garnishment plaintiff insured. The against garnishee’s for a prior judgment as error the denial of its motion for insurer enumerates notwithstanding granting the verdict and judgment motion for directed verdict. plaintiff’s motion for granting plаintiff’s 1. The trial court erred in directed verdict. denying The trial court did not err in insurer’s motion
2. notwithstanding verdict. J., Been, Quil- Hall, J., Eberhardt, reversed. P. P. Judgment Bell, J., Stolz, JJ., as to 1. C. lian concur Division J., Pannell, Clark, JJ., Bell, Pan- Evans and dissent. C. nell, Evans, Stolz, JJ., concur as to Division 2. Clark Quillian, JJ., dis- Hall, J., Eberhardt, J.,P. Deen and P. sent. 13, 1972— 10, 1972— Decided July
Argued January July 28, 1972 Rehearing denied Whelchel, Fendig Whelchel, & J. Thomas Fendig, Dickey, for appellant. Dennаrd, Jr., Dennard, Thomas E. Liles &
Nightingale, for appellee. my In dissenting from Division 2.
Hall, Presiding Judge, in- the denial of the should both this court reverse notwithstanding the verdict for judgment surer’s motion motion for directed verdict. grant and the of plaintiff’s *2 on the denial previously this court This case was before an For out summary judgment. motion for of the insurer’s Mut. Ins. Co. v. Proud- of the facts see Cotton States line 305). (181 At the trial of thе SE2d foot, 123 Ga. 397 App. materially introduced which case, additional evidence was of that decision. For Cotton changes example, the results in California agent of its presented deposition States the transporta had delivered personally who occasions, attendance at the trial on two money tion for her reservations, her other any and had offered booked He had received necessary making trip. assistance Also, that be Cotton present. her assurances she would a letter to the insured which States introduced the trial on the made it clear that if she did not attend sec set, further responsibility ond date it would disclaim from her defense. It also reiter the matter withdraw that it reserved the to claim breaсh of the non right ated the defense of the undertaking clause while cooperation further that Cotton States did re suit. The record shows a continuance when she failed to the second quest appear time, substantially and it denied. Since evidence review, the former different from what appeared McDonald, is not the law of the case. Sams v. 119 ruling (167 (2) 668); Wight, Davis v. 207 Ga. Apр. 547 SE2d (63 405). 590 SE2d for failure to- a res estoppel
Therefore the issue serve and the notice is from the case ervation removed diligence acted is whether the insurer only question the insured’s H. Y. cooperation. and in faith to obtain Co., Sons, App. & Louis Fire &c. 120 Ga. Akers Inc. v. St. (172 355); Sorrough, 122 Ga. Wolverine Ins. Co. v. 800 SE2d Fire Ins. Co. 556 National Union App. 700); Farm State Mut. Carmical, 99 Ga. App. Wendler, Auto. Gordon, Fire
and St. Paul &c. Ins. Co. v. 278) Akers are not in conflict with and Wolver- ine, see, Law regard In this Insurance supra. Appleman, 136, §4782; 148, and Practice §4784. that Cotton showed lack contends States appellee deposition when it refused to take its insured’s on the first date set for
after she had failed to appear of the court’s to take her view instructions especially her He cites sеveral cases deposition procure presence. or rely from other indicate that order to jurisdictions which the insurer must take the upon non-cooperation, deposition not may where there are reasons to believe the insured He the circumstances here were such contends appear. as to rouse she would suspicion appear.
However, also shows that she assured the lawyer California and its she agent, definitely per- would second date—that appear *3 had kept away sonal her the first time problems solved. been an do in question way is: what must insurer its insured’s attendance in order to be deemed
procuring far diligent? Georgia Recent law indicates that less is nec- essary actuаlly than was done here. "If the asserted breach case, is the insured’s failure to attend the trial of a a show- ing notify reasonable effort to him of the time and place court, as a request scheduled and for his attendance is sufficient.” H. Y. Akers & v. Louis Sons St. Co., 800, 4, Fire &c. Ins. 120 Ga. Hn. Wol- supra, 556, verine Sorrough, 122 Ga. App. supra, p. 557. a Where makes out a facie case and the party prima evidence, other fails or refuses to introduce party 677, required 674, court to direct the verdict. 88 CJS §258. a
"Evidence sufficient to establish proponent’s puts adversary necessity evidence to producing case, meet the facie or to prima produce evidence sufficient 802
to create a state of equipoise between his and that proof Davie, (71 Hawkins v. the adversary. 550, 136 Ga. 552 SE Hyer Co., v. Holmes & 873); (79 837, 12 Ga. App. 846 SE Phillips v. Lindsey, 58); 479, (2), 31 Ga. App. 482 484 (120 Davison 923); Corp. Hart, Chemical v. SE 68 Ga. App. 413, 107); 417 1884, 999; 4 Jones on Evidence 1 § 367, 368, 205; 379, Jones on Evidence 207; 31 718, CJS § § 110; 132; 137, 134; AmJur 138.” Com- § § § § plete Auto Transit Baggett, (1) (130 271). If nothing is introduced counter the prima facie the direction of the verdict is "inevitable.” Mackey v. Mutual Aid Co., &c. SE 643); Department Stewart, Revenue v. Clothes, Lansdale Wright, Inc. v.
817, 819 In my opinion the insurer hаs shown prima facie a breach of the cooperation clause its diligence faith in seeking to obtain cooperation. The burden therefore shifted to the plaintiff, who is claiming under the policy insured, shoes of the justification show or excuse for Wolverine, breach. supra. There was no such showing made here. For these reasons the trial court еrred in direct- ing a verdict for plaintiff and in denying garnish- ee’s motion for judgment n.o.v.
Eberhardt, J., P. Quillian, JJ., Deen and concur in this dissent.
Pannell, Judge, dissenting from Division 1. The trial court should be affirmed in. its granting of plaintiff’s motion for directed verdict and denial of defendant’s motion for judgment notwithstanding the verdict.
This case is on its second appeal court, to this on appeals by the garnishment case agаinst it based on a against obtained its insured in an automobile col *4 lision action. On the first appeal the sought a sum mary judgment in its favor because of alleged lack of cooperation on the part of the insured in the of defense the damage action the against the insured was obtained. This court affirmed the trial judge the holding summary judgment, the of in the denial appeal first "It as follows: opinion 4th Division part prior continued had been the case shown was held, counsel but when final trial was the time on which not present, the insured learned for the insurer further continu he not show that moved does the record upon notice rights’ of a 'reservation in order to serve ance the trial advising defendant, himself with contented the but the insur to contend reserving rights his that he was court co-operate. her failure to not effective because ance was the the court, however, agent was not The elects to partici and when an insurance person, such giving without defending the action in a trial pate to later notice, estopped it is then rights’ 'reservation of Mut. Cotton States the insurance is effectivе.” contend overruling is the the appeal complaint On this second The notwithstanding the verdict. for judgment the motion garnish [the the "At the trial of says majority opinion mate introduced which case], ment additional evidence was Among the so- of that decision.” changes results rially "It evidence, following is listed: changes called right it reserved insurer] also reiterated [the undertak сlause while of the non-cooperation claim breach that Cot shows further of the suit. record ing defense insured] [the when she request did a continuance ton States action was damage [the time failed to the second appear The majority and it was denied.” trial] called for substantially then that "Since concludes review, former appeared different from what the issue and "Therefore the law of case” ruling is not notice is a for failure to serve estoppel is whether only question and the removed from the case faith to obtain and in insurer acted with cooperation.” insured’s and with change facts statements as to
With these to disa- therefrom, compelled I am reached the conclusion es- question thаt on the reason gree very simple *5 evidence, change has no material there been toppel on the ruling prior in or manner affects the any way for the the of a n.o.v. grant or authorizes appeal of in- majority here. The statement facts garnishee action made damage that a motion to continue the fers notice on serving of reservation of purpose contrary, the insured defendant in that action. On the appear shows that when insured failed it had damage second time on the trial of the suit after once, a motion been continued counsel for the insurer made absence, for of her made no motion continuance because but notifying for continuance for the the insured of purpose to claim a right cooperation its reservation breach the insurer confronted a sudden alter- clause. Nor was (which only by native is the difference claimed the insurer brief), for to the trial of prior damage its appellant action, had and mailed a letter to the appellant insured that if she was not at the trial saying present they from the damage wоuld withdraw defense of the suit case. then, How can claim that because of her they nonappearnce they were forced to defend the or confronted with an emergency insured, decision to defend without notifying when in fact the insurer had it already notified would not if it defend under the circumstances? Even been confronted with a sudden or emergency alternative choice, in any way ruling this fact would not affect the very as this same contention was made at appeal However, that time. there is some additional evidence as to whether a of rights given. notice was This is Vickers, the letter written Charles F. claims manager insurer, 28, 1969, to the insured on in- April when the Oakland, sured lived California. The material parts the letter are "Mr. Tom Conyеrs, as follows: Whelchel of Whelchel, Fendig, Dickey, Fendig Law, at Attorneys Brunswick, Georgia, litigation informs me that the pending against you County, Georgia, Camden is set for May and that been so you have advised his and that phone you you call to of last week have been fur- ther advised that he will meet you arrange your for stay during the trial of the case. forwarding Rose,
"I am to Mr. Manager, J. S. Brown Adjusters, Avenue, Oakland, Brothers 2014 Lakeshore Cali- fornia, 452-3681, carbon phone copy this two of each, our checks in the company’s amount of repre- $333.50 senting air and ground transportation you your husband to attend trial in County. Camden The amount of the check round represents [fare] and will be trip you *6 accommodated in Brunswick at our expense. you fully
"We wish to that you understand should fail to attend in upon the court Camdеn County May of trial of purposes this it is our intention to any disclaim further in responsibility the matter and to from your withdraw defense. at you
"We advised the time of of learning litigation this that we undertaking your were defense strictly upon reser- rights vation of our and that any action on the of the part company would not waive and should be construed as a any waiver of the defenses рossessed by company, based upon your failure to cooperate, nor to your timely failure notify the of the accident and ensuing litiga- tion. The actions on the of part our company have been taken far this under this understanding again and we rei- terate our position.
"Mr. Rose of Oakland, Brown Brothers Adjusters in will deliver to checks for you your transportation.”
There is testimony checks sent to the in adjustors Oakland, California, arrived before the time set for the trial and the checks were delivered to the insured. The writer of the letter testified that other than sending the let- ter he did not personally any make other of reservation rights give or notice of kind any to the insured. There was no evidence that other notice or given. resеrvation was The evidence also disclosed that the letter of April 28th was sent registered mail and "the return was receipt deliv- ered back” to the writer of the letter "stamped Post Office in Oakland.” The evidence to fails disclose the date intro- receipt nor was the return of delivery
of in duced evidence. It does not prove
What, then, prove? does this evidence this was made before rights reservation аny prior in the letter as written, and the statement letter was self-serving ais mere rights notice of reservation prior finding demand a does not submitted proof declaration. to the time letter itself prior received the the insured the actual upon action to defend the case took the insurer that a of the copy shows the evidence trial thereof. Since included adjustors to the 28th mailed April letter 5th, jury trial on May prior the checks arrived letter original to find that authorized may have been to the act of the insurer the insured received the trial. defending damage upon actively a sufficient notice If the letter was ac- subsequently of the insurer as to the action case at damage defense of the tively particiрating alone, issue trial, would, for reasons and this I these gar- the insured refusing grant judge affirm the in. n.o.v., him and would reverse motion for nishees’ in fi. appellee-plaintiff a directing verdict favor would be involved. fa., jury for the reason that issue *7 letter, However, that the when properly I am of the insured before construed, by and even if received notice of such reservation trial, did not constitute the of that reading paragraph A and rights. close examination it shows refers dealing letter with the reservation of the and partic- past of the insurer and insured solely to actions reiterate our again position.” it then states "we ularly when of the is forti- the intent and purpose That this was the insurer noti- that in the identical letter by fied the fact to coopеrate by she failed fied the event 5, 1969, "it is our intention May trial set for attending the. in the matter any further responsibility to disclaim This statement withdraw from the definite defense.” from would withdraw under this insurer circumstance the reservation conclusively at the- shows the defense "reiterated” did not to the action of the in- apply in at the trial to its subsequently defending contrary surer statement in the lettеr. For these reasons I would affirm is, in the denial of a every respect; judg- garnishee ment for the and the direction of a n.o.v. verdict plaintiff in fi. fa. I Judge am authorized to state that Chief Bell and in Judges Evans Clark concur this dissent. Judge, from dissenting Division 1. The result of
Evans,
holding
is that
majority
only
required
burden
of the
is to show that
it acted
faith
to obtain the
seeking
cooperation.
insured’s
That
is in
only
direct contravention of the
of this case”
"law
as established in Cotton States Mut. Ins. Co. v. Proudfoot,
305),
256); Cotton States Mut. Ins. Co. v. and in supra; it particular, is direct contravention of
an opinion Eberhardt, Judge conсurred in by Judge Hall, in St. Paul Fire Gordon, &c. Ins. Co. v. 278), which holds: "The question toas whether the company reasonably diligent in seek- ing obtain information from the so, insured and if whether the insured’s conduct was such as to indicate a purposeful intention to the cooperation to which his refuse insurer was entitled resolution jury.” (Emphasis supplied.) it
Surely, cannot be successfuly maintained that in- suranсe this case showed inten- "purposeful tion” on fail part insured to to cooperate.
Further, where an a defense, insurer conducts as was done in this without giving notice of rights, obligated it is thereafter to afford coverage. See Cot- ton States *8 Proudfoot, Mut. Ins. Co. 397, v. 123 Ga. App. (78 Co., Jones v. supra; 181, Ga. Cas. &c. 89 App. Ga. 185 808 861); Anderson, Farm Mut. &c. Co. v. 104
SE2d State Ins. (123 191). App. Ga. 815 SE2d gave The insurer never a notice of resеrvation defendant, in lieu it mailed a letter to the in to the but California, setting from Brunswick to certain self- up sured statements, it serving saying previously done so. course, self-serving hearsay Of declarations are as Osteen, 224, nothing. Gay App. See v. 56 Ga. 231 prove (192 539); Mineola Mill 668 Griffin, App. SE Co. v. (2) (90 360). SE
Further, although the insurer’s mailed this sec- attorney insured, signed ond letter to the and had a return receiрt signed receipt the insured it elected not to introduce said no absolutely proof since there was self-serving the insured received said declara- tion therein the "law of the es- case” as tablished when this case was before this court earlier (Cotton 397, States Mut. Ins. Co. v. 123 Ga. App. controlling on the of law to be supra) principle applied Williams, Moormаn thereafter. See 640 App. Co., Blackwell v. Southland Butane Gas 95 191). Ga. 113 App. upon
The insurance relies the cases of H. Y. company Co., Akers & Louis Sons v. St. Fire &c. Ins. 355) Sorrough, and Wolverine Ins. Co. v. 819). Both of opinions
Ga. these were by Judge They give way Eberhardt. must older cases on this same point they give must likewise way to concurred in Ann. opinions judges. five See Code (Ga. 232; 159; L. p. pp. p. §24-3501 140; 1967, p.
And particularly, they give way Judge should Eber- hardt’s earlier Paul Fire St. &c. Ins. Gordon, Co. v. supra.
I stating my am views here for fear that hereafter some that an attorneys Georgia may feel insurance obligation by showing can evade its it simply used reasonable to secure the insured’s coopera- *9 But, true did cooperate. he thereby establish tion to decided in St. Eberhardt, and Felton Hall Judges as law is 658, 660, Gordоn, 116 Ga. App. Fire &c. Ins. Co. v. Paul has a bur- the insurance effect supra, the insurance com- to wit: things, two showing den of to obtain seeking reasonably diligent pany awas purposeful conduct that the insured’s cooperation; and cooperate. intention to refuse decisis, which means of stare have the rule Georgia In we Fidelity- See control until overruled. older case must 108, 111 Mauldin, Ga. App. Phenix 529, Smith, Ga. v. Croker 334, 335 McCurry, 223 Ga. 787); McCurry v. prevail, will still Therefore, following cases Carmical, 99 Fire Ins. Co. v. Union Georgia, to wit: Nat. v. Gor Fire &c. Ins. Co. 98, 103, St. Paul App. supra; Auto Farm Mut. State don, supra; Cotton Wendler, supra; Ins. Co. supra. Mut. Ins. Co. v. States from the judgment I dissent For the reasons stated above Judge in all that is stated I likewise concur of reversal. dissent. Pannell his TELEPHONE BELL MARTIN v. SOUTHERN
46930. et al. TELEGRAPH COMPANY & February 1, 1972— 1972— Argued June Decided July 28, 1972 Rehearing denied