*1 206 present
failure to requires a brief an affirmance of the exception can no therein be on without since ruled recourse 269). Attaway Duncan, evidence. SE2d
Judgment All the Justices cоncur. affirmed. September September 12, 1961. 11, 1961 Submitted — Decided William B. plaintiff error. Harrell, Eugene Cook, Attorney-General, Earl L. Hickman, Assistant B. Attorney-General, Jr., Daniel Deputy Dubberly, Assistant Attorney-General, contra.
21342. NICHOLSON v. BALKCOM. Chief only Justice. The showing of Duckworth, service of exceptions bill of is a certificate by error he had served by mailing clearly same. This falls short thе requirement (Code in the found statute Ann. 6-911; Ga. L. 1953, Sess., pp. Nov-Dec. 440, record thus showing lack Supreme a Court service, without jurisdiction, writ dismissed. of error must be Walden v. Weston, SE Warnock Woodard, 183 Ga.
Writ error All the dismissed. Justices concur. September September 11, 1961. Submitted 1961 Decided Nicholson, pro Edgar se. Lee
Eugene Attorney-General, Hickman, Earl L. Assistant Cook, Attornеy-General, contra.
21291. RESERVE LIFE INSURANCE COMPANY
v. AYERS. *2 Argued July September 11, 11, 1961 Decided
Rehearing September 1961. denied
211 Eugen& Dyer, Tyler, Tyler, Burns Stonewall H. & Kerr, M. Beryl plaintiff in error. White, Weimer, for Houston Jr., Randall contra. Evans, exception application the first of Justice. The
Quillian, a that, in not as Apрeals deciding that Court erred is of the the $8,000 attorney’s matter the awarding fees to of verdict law, petition the plaintiff It must remembered that be excessive. right forth of court, thе addition setting filed in trial in to the alleged a be plaintiff pro the the to recover to covered loss alleged the in policy upon, visions of the sued that defendant thаt refusing surer faith in the and for acted to loss the and plaintiff penalty reason was the for statutory liable to attorney’s provided petition fees for Code set 56-706. The out thе plaintiff’s in detail that the rend attorney services had filing ered would render in the suit the prosecuting on alleged attorney’s policy, and the of specifically value the $8,000. services to be allegations
The a demurrer the filed to the of petition attorney’s fees, following respecting language: the “That prayer petition the containеd in for the as amended $8,000 attorney’s fees in view amount clearly excessive of the of principal for and alleged by plaintiff sued con- the facts cerning required prоsecute plain- the claim the efforts of to demurrer, tiff.” trial of judge and the Court The overruled Appeals the judgment. afiirmed
The
ground
defendant made that
a
for re-
ruling
of motiоn
except
but
not
the same in
application
did
to
writ
hearing,
judgment
The
brought
certiorari
court.
of the Court
to his
Appeals
adjudication
petition
became a
final
that
forth
set
rights,
plaintiff’s
permitted
all,
if
to recover at
attorney’s
prayed.
opinion
in the amount
of the Court
fees
unreversed,
questioned.
cannot be
v.
Appeals,
McEntire
(162
Co.,
134);
John Hancock Mut.
Ins.
The rule is here
supported
is
to sustain a
A verdict
sufficient
verdict.
of the
competent
approval
by any
evidence which has the
judge
of
by
trial
not
this court
will
be disturbed
unless errors
(1) (88
appear. Greenwаy
law
SE2d
Sloan,
Ga.
692).
State,
Reed v.
The is application taken writ of exception final in the for The holding Appeals that Court erred in that certiorari of is the the the support finding in record the of was evidence to there plaintiff’s refusal the claim jury pay that the defendant’s to contemplated by faith Codе 56-706. Bad loss was in as any within the of the statute un meaning frivolous or faith the according law or in fact to a loss to founded refusal in legal after Cimarron Ins. Co. v. contract demand. insurance Pace, 212 SE2d policy upon
The of insurance sued the clause: contained this years policy “After date of issue of two from the no misstate- misstatements, excеpt by applicant fraudulent made ments, the be application policy, in for shall the the such used to void deny a claim loss after policy expiration or to incurred the The period.” such two-year defendant’s answer set the up defense that plaintiff wilfully affirmative the made false answers questions application the to contained in for the that insurance, the materially policy answers affected risk covered not and, this reason, was entitled to recover suit the policy. Upon ground on this same it had refused plaintiff’s payment demand for of the loss. Appeals Court of held that the burden upon was defen
dant
prove
plea.
repeatedly
the affirmative
This court has
upon
held
the burden
prove
the insurer to
an affirmative
such as
defense,
obtaining
on
part
fraud
of the
insured
the policy, or that a loss
apparently
policy
сovered
came
within an exclusionary
in the policy.
clause contained
Water
*7
town Fire
v. Grehan,
Ins. Co.
(1);
Empire
It
also
been established
rule
has
an
the
prove any
the insurer to
defense to
action on
failure of
contemplated
by
the
faith
Code
policy is
оf
subjects
statutory
a
for
the insurer
verdict
the
and
to
56-706,
§
Co.,
Sheppard,
Travelers
v.
attorney’s fees.
Ins.
penalty and
(12
18); Traders Ins. Co. v.
381
Mann,
Ga. 751
SE
118 Ga.
85
(45
426).
not
especially
This
true where
SE
is
the insurеr does
prove
investigation
that reasonable
of
insured’s claim was
the
for
in
sixty-day period
within
after
payment,
made
the
demand
Co.,
the
made. Cotton
statute,
terms
has been
States
Ins.
of
Life
Co.,
v.
Hull
Alabama Gold
220;
v.
Ins.
Edwards, 74 Ga.
Life
(
the prepare to transmit solicit, defendant’s authorized аnd application defendant insurance, to the from the obtained questions the truthful the answers to the in contained knowledge answers, but without application, his inserted falsе imputable knowledge was not actual the as to defendant. The point important in a is if the had, because legal knowledge that the sense, actual not made plaintiff had propounded the questions untruthful answers to the applica- ground tion, upon refusal to that frivolous the loss was and unfounded.
This court Hillyer Brogden, held in 24, 67 that 26, Ga. knowledge actual agent an scope of of facts within the his agency vicariously principal’s ad- and has knowledge, hered ruling consistently to that ever since.
The rule applicable agents is to all insurance including alike, agents. court has that agent This held where an authorized to solicit prepare an application for insurance has аctual knowledge that has not false insured made answers questions contained in the application, not mere knowledge, fact, notice that imputable is to the insurer and becomes knowledge Co., latter. Johnson Aetna Ins. 123 404, SE Rutgers Globe 339, ASR & Fire Ins. Co. v. Walker, especially Ga. 163 SE is rule applicable where, agent instant case, as from recеives the insured truthful questions propounded answers to ap- plication, without knowledge such insured’s or inserts consent application. false answers in the Clubb v. American Accident Co., 2) (1, Ga. 502 This majority is the rule jurisdictions other country. of this 29A Jur. Am. 1060.
Under the principles apparent it the Court discussed, *8 Appeals correctly held was evidence in record there support that the finding insurer’s refusal to the loss policy covered frivolous unfounded; hence, contemplated the bad faith statute.
Judgment All concur, except Almand, Justices affirmed. J., who dissents, who in the Mobley, J., concurs result. opinion dissenting. In Justice, my
Almand, insufficient part to show faith on insurer.