Insurance Claim. This is the third appearance before this court of this lawsuit. Paul T. Davis d/b/a Dome & Company owned certain warehouse space. Davis rented this space to Hybrid Industries which firm used the space to store televisions. Hybrid became delinquent in rent, and Davis obtained a writ of possession. In order to protect Hybrid’s property, Davis undertook to move the televisions to another warehouse location. There is some indication that the movers took some of the televisions as compensation for their move and that other sets were damaged while in storage. Hybrid successfully brought suit against Davis for conversion in an amount in excess of $53,000, with an additional award of $46,000 punitive damages. Davis sought to have Cincinnati Insurance Co. defend him against Hybrid’s suit. Cincinnati defended Davis with a reservation of rights. When the trial court ruled there had been a conversion, Cincinnati withdrew from further defense on the grounds that the policy did not cover wilful acts by the policyholder. See
Davis v. Hybrid Industries,
1. In his first enumeration of error, Davis complains that the trial court erred in refusing to give a requested charge. In this court’s second decision in this case in
This court when considering in our preceding decision the issue of coverage, was concerned with the wording, meaning and intent of a particular provision in the contract of insurance. In substance we sustained a finding by the trial court that Davis had improperly but in good faith invaded the premises of the lessee, Hybrid, based upon inadequate service of process of a writ of possession. The terms of the policy provided coverage for a wrongful entry or eviction or other invasion of the right of Hybrid to peaceful occupancy. We concluded *815 that this policy provision allowed only one reasonable conclusion. This holding addressed a partial grant of summary judgment. Thus, we were required to determine whether the interpretation of the policy provision was a matter for the trial court or should have been resolved by a jury.
As to the charge and verdict concerning the negligent failure to settle the claim and bad faith, the issue to be decided was not the ultimate meaning of the policy provisions but the state of mind of the insurer when it decided that acts of conversion were not covered or what matters prompted the insurer to contest the case of liability and appeal the adverse judgment rather them settle the claim upon a bona fide offer to settle.
Even though language used by an appellate court in a decision may embody sound law, it is not always appropriate to employ such language in instructing the jury. Such an instruction may be helpful in explaining a principle of law but ambiguous to a jury.
Griffin v. State,
2. The same principle discussed in Division 1 of this opinion disposes of Davis’ second enumeration of error. In that enumeration, Davis contends that the trial court erred in allowing the jury to construe the policy rather than the court doing so. Once again the jury was not attempting to decide liability; that issue was settled. The jury was given the policy to help it decide if, in light of its various provisions, Cincinnati acted reasonably in refusing to settle the claim or acted in bad faith in refusing to pay the claim upon demand by Davis after liability had been established. While we cannot say that the jury could so easily decipher the provisions of the policy as ineluctably to disclose the insurer’s reasons for declining coverage, likewise we cannot say that the policy provisions could in no way contribute to a better understanding. The rule in this state is if
*816
evidence may contribute some light on the issue under consideration, even if of debatable value, the evidence should be admitted and its weight left to the jury.
Lovejoy v. Tidwell,
3. In his last enumeration of error, Davis contends that it was error to allow the attorney who represented Cincinnati at the time the decision was made to refuse to settle the claim to testify that an inventory (not before the court) and other evidence indicated that Hybrid’s claim might result in a judgment of $17-$20,000 and Hybrid was not willing to settle for less than $32,500. Davis contends that the testimony in reference to the unavailable inventory was hearsay. Accepting the truth of that conclusion, it has no bearing on the question confronting the trial court and the jury at the time the evidence was being discussed by the witness. Clearly this evidence was useful and probative to explain the conduct of the witness in advising his client Cincinnati not to settle the claim and thereafter to aid the jury in deciding whether the refusal was negligent or done in bad faith. It long hás been the rule in this state that evidence containing facts which explain conduct, ascertain motives or illuminate reasons for actions (state of mind) where that is in issue, those facts are admissible in evidence, not as hearsay, but as original evidence.
Blanton v. Marchbanks,
4. In its cross appeal, Cincinnati raises three additional enumerations of error. We are not persuaded by the logic of the argument presented on its first two enumerations. In substance, Cincinnati argues that when summary judgment was granted establishing liability by Cincinnati for the $99,000 judgment obtained by Hybrid against Cincinnati’s insured (Davis) and Cincinnati paid that judgment all the remaining issues became moot particularly where Davis did not insist at a pretrial hearing that the issues should be limited to the matter of negligent failure to settle the claim or bad faith.
We agree rather with the counter-argument advanced by Davis. The trial court granted
partial
summary judgment to Davis, thus resolving only the legal issue of whether the policy of insurance covered Davis’ act of entering Hybrid’s rented space and removing the televisions in question. There were two additional counts in Davis’ complaint which were not treated in the partial grant of summary judgment. These necessarily left issues of fact pertaining to reasons for Cincinnati’s declination of coverage and damages, based upon its erroneous conclusions, for further trial by a jury.
Bituminous
*817
Cas. Corp. v. Mowery,
5. In its third enumeration of error, Cincinnati argues that the trial court erred in overruling its motion for judgment n.o.v. The basis of the motion is that “bad faith” forms the basis of the count dealing with negligent failure to settle Hybrid’s claim against Davis. Inasmuch as the jury returned a verdict absolving Cincinnati of bad faith, Cincinnati argues that the verdict of $10,000 for tortious failure to settle the claim is inconsistent with the absolution of “bad faith,” thus entitling it to the judgment n.o.v.
Cincinnati predicates its argument upon the wrong premise. Davis presented his claim for bad faith as a contractual matter. It was argued that Cincinnati was obligated by contract to honor all covered claims within 60 days after valid claim was made therefor. Obviously this action was laid under the penalty provisions of the code dealing with insurance carriers, i. e., Code Ann. § 56-1206. That provision of law authorizes the recovery of a 25% penalty as well as attorney fees upon the demonstration of bad faith.
In addition to that count, however, Davis sought to recover under the authority of Code Ann. § 105-2009 for Cincinnati’s negligent failure to settle the claim by acceptance of a bona fide offer to settle by Hybrid prior to suit. This is an action ex delicto and does not require a showing of bad faith. In deciding whether to accept an offer of settlement within policy coverage the insurer must accord the interest of its insured the same faithful consideration it gives its own interest and it is a matter for the jury to decide whether the duty was faithfully or negligently performed.
U. S. Fidelity &c. Co. v. Evans,
Judgment affirmed in both appeals.