*1 (Code 26-602; Code of 26-602 Ann. Ga. L. § § 1249, pp. Had the defendant wished any further on subject instruction he should have so requested.

5. The defendant contends the court not should have in- jury regard

structed the "cooling charge time.” This even if erroneous was harmless is given because it connection of charge with murder the defendant and of was convicted voluntary manslaughter.

6. remaining of enumerations error are without merit.

Judgment Hall, J., Pannell, J., P. and concur. affirmed. 22, 1972 Submitted November November Decided Rehearing denied December Johnson, Jean Jr., E. for appellant. Smith,

Ben Attorney, F. District for appellee. 47343, 47344, 47345. SMITH et al. v. NATIONAL (three cases). UNION FIRE INSURANCE COMPANY Presiding Judge. origins of these consolidated Hall, appeals were three death wrongful against actions Smith, carriers, defendants who are licensed motor their two insurers. either a Following jury for verdict plaintiffs negotiated settlement, or a Union paid out substantial sums. It had earlier filed cross claims against the Smiths reimbursement any payments of would be to make. Both the Smiths Na- tional Union filed for summary motions on judgment effect) (in claims, cross stipulating there were factual issues and that one or another should have the judg- ment. granted The court National Union’s motion. The basis for National liability to plaintiffs

that it had filed of certificate insurance with Public Service which, Commission until 30 days after written for the benefit cancellation, provides

notice and rules of the law under general public con- Union Ann. 68-612. National Code the commission. required give it did cedes and that it was death wrongful before commission *2 plaintiffs. obligated pay legally therefore from the Smiths for reimbursement for its claim The basis because them, there was no that, is as between stated in the The policy had policy lapsed. 26, 1964, to April April from of insurance was contract and no fur- of the policy no renewal 26, 1965. There was was form of consideration any or other ther premium had, fact, a liabil- procured in They the Smiths. given by fol- for the company from another contract ity insurance on November death occurred wrongful The lowing year. in for reimbursement policy provided itself made a company payment in instances which those to make for the except be would not otherwise However, the contrac- authority. to a public certification relied since the same upon need not be provision tual the rules of the Public Service required by result is Fidelity Co. v. & Cab by Commission and Cas. to the Pub- a form certification

That Union made was effective stating policy lic Service Commission (and not mean the given) notice does "until canceled” in other any could not terminate contract of insurance cancellation; certainly hypothetical and no way except could purport Service Commission rules of the Public parties a between which private extend or renew contract no consider- and for which there was did not intend they that until only provide proper can ation. The rules for the commission, effective to the is public. benefit of the City case between the Garden only distinction of the the cancellation the former involved

one is where this one involves ordinance municipal of time and a by lapse of the the termination in State statute. both cases there was effect at alleged between the insurer and insured the time of the to the injury public. By substituting the words "terminated or of the expired” place word "canceled” and the word "statute” in of the place word "ordinance” is, City opinion, the Garden the result here clear. "The of insurance at the time of the injury of the public member had been canceled and the pre- mium returned. It was therefore in force only insofar as required prevented ordinance which the taxi- from operating cab without the required bond. Clearly the endorsements when construed in conjunction with the ordinance as herein outlined leave the bond only force for the protection public and not for insured, protection and such manifestly the intention of the . parties Except . . for the ordinance no liability there was on the part the insurance com- pany after it had canceled the accordance with its terms and had refunded the unearned premium. *3 for Except the ordinance the insurance could not been in have sued the same action with the insured by a member of public. for Except the ordinance the plaintiff, it after had canceled the accordance terms, with its would have had no interest in any sub- sequent against claim the insured and would not have adjusted the same . . . Consequently, when the liability of the insurance company ceased under the terms of the original policy, any liability incurred thereafter under provisions of the city ordinance was a liability such as might be recovered it indemnity under the en- dorsement.” City Co., Cab Co. v. & Fidelity Cas. supra, p. 853. See also Paul St. Fire & Marine Ins. Co. v. Fleet Transport 606 The also Smiths payment made settlement contend

of one "voluntary” case was and therefore not recover- able from them. The contention is without merit. The payment the Garden case was also a settlement.

755 motion granted National properly The trial court summary judgment. Deen, Eberhardt, J., Clark Bell, J., P. C. Judgment affirmed. Evans, JJ., Pannell, Quillian Stolz, JJ., concur. dissent.

Argued July 6, November 1972 Decided Rehearing 19, December denied Adams, for Hardin, appellants. Walter N.

Walton Meredith, Cook Barwick, B. M. Bentley Binford, & Gilbert Barwick, for appellee. following facts should Judge, dissenting.

Quillian, automo- comprehensive be noted: National Union issued to the which listed the liability bile Smiths 1964, 26, 26, 1965. Since this April April from 68-612, of Code Ann. Na- provisions was under the Public Ser- tional Union filed a certificate with (CA971388A) that the policy vice Commission which listed 26, canceled.” The April effective from 1964 "until "if 'until can- complete form further recited continuous — ” subject which is the celed.’ The automobile collision 12, However, on original suit occurred November 1965.. 16, Public Ser- July until from vice Commission received notice cancellation Na- August tional Union. cancellation was effective to the contained the follow- 1966. The issued Smiths endorsement: "Cancellation of the and this en- ing may only giving days dorsement be effected after writing authority or Federal with which public such certificate has been filed.” it is entitled to reimbursement Union contends *4 from the of that provisions Smiths because to reimburse the agrees company any pay- "the insured it by ment made the which would have been by to make under the terms of this policy except certifica- obligation making reason of the assumed such In to court National Union cites argument tion.” its this 756

the of Georgia rules Public Service Commission and sets out that compliance was issued with the Georgia Public Service Commission’s rules and con- connection, trolled by such rules. In this National Union states that the policy Georgia follows Rule 35 of the Public Commission; Service that although the certificate to the Georgia Public Service Commission recites canceled, was effective until this subsequently rule was after the of changed issuance but colli- before the in question. sion support argument is the affidavit of National agent which recites that the notice to Public Service Commission indicated policy was effect "until canceled” which inwas com- pliance with the Public Service Commission’s rules time, at that but that the rule subsequently rescinded July Although there is foreign authority considerable (see contrary e.g., Ohran Co., v. National Automobile Ins. (187 82 App.2d 66)), Cal. 636 P2d the case of (2) (57 Co., Cab Co. v. Fidelity & Cas. 80 App. Ga. 850 683), SE2d cited the majority, apparently controlling. However, it is applicable only if there awas cancellation or termination the policy between National Union and its insureds, the Smiths. This then is the determinative issue in the case.

In ascertaining whether the contract could be terminated or could lapse, Georgia Public Service Commission’s Rules are If exceedingly vital. the Rules allowed after a lapse definite time then National might Union rely on that fact plus ruling in Garden City Cab Co. v. Fi- delity Co., & Cas. App. supra, sustain its However, contention. if the policy must continue until can- celed then National Union must make a showing that met any formal cancellation requirement which the Rules specified. Gilley v. Glens Falls Ins. Ga. 218). For can not provision prevail over the statute,

terms of the promulgated pursuant rules there- to, strictly which must be followed. See State Farm Mut. *5 (156 529); SE2d Reese, App. 116 Ga. Co. v.

Auto. Ins. Insurance, 45 CJS portion claim a cross in National Union’s

Although is set Commission Public Service of the Rule 35 the rule on to introduce made forth, attempt there was Moreover, there no show- is summary judgment. motion for or what rule was effective to the particular as when ing in these time involved period effective for the rules were of Na- Underwriting Manager A cases. statement to establish the rules not sufficient tional Union is at a par- or their status Commission Georgia Public Service Furthermore, judicial cannot take this court ticular time. Commission Rules. Georgia Public Service notice of the Newman, v. Light Atlanta Gas Co. Atlanta, 148 v. 536), and cits. Shurman (3) (95

Ga. 1 SE Commission’s Rules Public Service Under the of insur- contract at the inception effect notice of apparently "until canceled” ance to the Smiths was neces- from National Union cancellation did changed they provide? were what sary. If such rules contract, that did they ap- instant they apply Did already to a contract retroactively retrospectively or ply any any contain reference to they entered into? Did must be the insured? which date, Here, absent the rules their effective applicable contract showing we no concrete as whether have one-year period. terminate or at the end of lapse could summary judgment of a should granting such situation approved. be Pannell and Evans Judges I am authorized to state that concur in this dissent.