*2
AINSWORTH,
Before COLEMAN and
Judges,
CARSWELL,
Circuit
Dis-
Judge.
trict
Judge:
Mrs. Donald-
able
COLEMAN,
Insurer was
Circuit
showed
examination
son examined.
origin
saying, the
an old folk
There is
symptoms.
this time
About
continued
try
not,
third
that “the
which know
rejected
to settle
an offer
repre-
legal warfare
charm”. The
significance,
great
Smoot
$5,000. Of
origin
litigation
had its
sented
*3
offers
any
these
informed
was not
ago;
nearly
years
it is be-
twelve
now
and refusals.
time.
In
for
third
fore this Court
subject
this
the most recent
1956,
December,
Mrs. Donaldson
In
appeal,
plaintiff-appellee, on a
separate suits
filed
husband
and her
verdict,
was awarded
City
Court
against
Smoot
Judgment
$65,787.60. The
will
sum of
claimed
Mrs. Donaldson
Savannah.
be affirmed.
$2,922.83.
claimed
$33,980. Her husband
proc-
service
was valid
there
Whether
Sergeant
the insured
a
Smoot was
question,
quite open to
was
ess on Smoot
general
Farm
State
automobile
Donald-
Mrs.
on
he
still
Guam.
as was
carrying
$10,000
policy
as to
limits
$5,000 in set-
by
demanded
time
son
this
person, $20,000 as
one
one
to
her husband
and
of her
damage.
tlement
accident,
$5,000 property
and
special
$2,922.83
driving
demanded the
5, 1955,
on
On November
Skidaway
while
complaint.
Georgia,
in his
Road,
Savannah,
claimed
near
Smoot collided from the rear with
Farm
5, 1957,
February
State
On
being
driven Mrs. Katie
automobile
stating
com-
letter
a
wrote Smoot
He
had been
Mae Donaldson.
said he
to
file
claim
his
pany had forwarded
“
bicycles
watching
* *
on
*
some children on
asked
attorneys
had
their
road;
the shoulder of the
being
his attention
of the
they
defense
look after
he failed to see Mrs.
thus diverted
you
Katie
brought against
lawsuits
stop
of him. Thus
Donaldson
in front
M. Donald-
and William
Mae Donaldson
son,
enough
impact
the collision. The
was
**
stat-
letter
husband
to
and knocked one
involve five vehicles
give
mat-
attorneys
ed,
will
“These
passengers
Donaldson car
* *
necessary attention
ter all
to the floor of the vehicle.
cooperate.
duty to
of his
Smoot
warned
a member of the armed
paragraph
Smoot was
followed:
This
services of the United
Three
States.
the amount
the fact
“Because of
assign-
months after
he
the accident was
you
suits
against
in these
claimed
meantime,
duty
ed to
on Guam. In the
protection afforded
of the
excess
he had notified
Farm
ac-
State
personal lia-
policy,
be a
there
-
they
cident and
had taken
statement.
his
In
your part.
view
bility upon
through
20, 1956,
About March
Mrs.
liability, it will
personal
possible
attorney,
Donaldson’s
the Insurer
company
agreeable
be
showing
report
ceived a medical
she
elect,
you,
so
if
representatives for
whiplash
a
in-
sustained
rather severe
your
choos-
procure
own
to
jury, causing misalignment of the fifth
represent
expense, to
ing,
your own
at
vertebra,
consequent
cervical
nar-
with a
appear
mat-
you personally
in this
rowing
space.
of the fifth intervetebral
attorneys we
ter,
in addition to
experiencing gradual prog-
was then
She
compensate.”
and will
have selected
symptoms.
ress toward
relief of
her
11, 1957,
Farm
February
State
On
attorney orally
Her
offered to settle the
stay
apparently
a
secured
for and
moved
$2,500. Later,
for
a
claim
offer
written
pending Smoot’s
the Donaldsons’ suits
$4,000.
was
submitted
settle
State
jurisdiction.
return
rejected
Farm
these offers.
jurisdiction
1956,
attorney
July,
In
Donaldson
returned
Smoot
City
before
reported
six months
a recurrence
first
Farm
State
March, 1958,
a
after
symptoms
certain
trial.
Mrs. Donaldson’s Court
decision
By
27, 1956,
hearing,
September
there
condition.
was
judgments
over
Farm on the
the Donaldson
Smoot
State
previously
petition
process
ob-
limits.
Farm’s
removal'
State
whether
on
on
valid. Because of
to the United States District Court
tained
was
Smoot
citizenship
of diverse
Farm’s
the basis
failure of State
granted.
transcript
then
The District
sus-
certificate made
hearing,
they
purported
a motion
rendered themselves
be
tained what
appeal
claim.
unable to
dismiss
failure
state
decision.
appeal
resulted in
this Court
Smoot’s
merits,
Just before trial
a reversal
remand.
v. State
Smoot
Donaldson
Farm offered to settle both
Cir.,
Co.,
Mut. Auto. Ins.
$5,000.
The offer
refused.
cases
trip
F.2d
That
the first
doctors
re-examined
Mrs. Donaldson’s
to this Court.
*4
days
Farm
a few
trial.
her
before
State
held,
531,
ex-
did
We there
299
at
not ascertain the results
these
F.2d
allegations
complaint
the
the
aminations.
charge
quite sufficient
to
want of
“were
trial,
physicians
At
had
the
two
who
good
rejecting
faith in
settlement offers
examined Mrs. Donaldson testified for
policy
generally
the
limits
in
within
the
Neither
seen
ever
defense.
handling of the
the
defense”.
taking
x-rays of Mrs. Donaldson before
essentially
the stand.
Each
confirmed
We elaborated:
plaintiffs’
concerning
the
the ex-
claims
good
question
“The
under the
faith
injuries,
tent of
includ-
Mrs. Donaldson’s
light
doctrine
in
is whether
ing
presence
trouble,
some
disc
developments
these
the Insurer
acted
permanent
thing.
Farm
State
knew
good
failing
in
settle
faith
with-
testify
substantially
doctors would
policy
By
very
limits.
its
na-
they
words,
Farm
did.
other
State
encompasses
ture that
knowingly
proof
adduced
unfavorable
concerning
specific
more
ones
the rea-
its assured.
case, whether,
sonable
valuation
City
While
was consid-
stage, proposed
at each
settlements
ering
verdict,
one
rejected consciously
were
terms
tained
State Farm
with the
discussed
deliberative
evaluation
be-
attorney
possibil-
the Donaldsons the
cause
of other or no reasons.
The
ity of a verdict
longer
excess of the State
inquiry
conduct
no
under
is
policy
Farm
limits. There
simple
was undenied
one of
driver of
assured
testimony
Farm
below
State
vehicle.
It is
the action of the In-
now
attorney
mentioned
light
letter written to
surer
of the conduct of its
[stating
employ
Smoot
he
driver-assured,
could
his own
probable
medical
counsel]
said
“the letter
took
evidence,
the like.”
Shortly
care of it”.
after this conversa-
next
We
said:
against
tion the
returned verdicts
peripheral
“Two other
somewhat
totaling $26,902.83,
judg-
Smoot
on which
matters must first be dealt with. The
ments and executions were entered.
first
is
contention that
the Insurer
The
for State Farm filed a
formally
notified
Assured
motion for
they
a new
failed
policy
since the
demands exceeded
timely
necessary
supporting
file a
brief
limit,
right,
at
Assured had a
his
required by
Georgia pro-
evidence as
expense,
to retain his
counsel.
own
Through
omission,
cedure.
this
the mo-
Just what
relevance this had at
this
failed,
automatically
tion
Cf.
Smoot
point
where the matter
is still
Donaldson,
Ga.App. 191,
108 S.E.2d
stage
jousting
pleadings,
on the
we
(1959).
quite
Obviously,
are not
sure.
Having
obliga-
pass,
not
come
does
reduce the absolute
to this unfortunate
good
against
(or
filed
tion to
Smoot
suit
exercise
faith
absence
negligence
claiming damages
speci-
equal to
as the local
law
the excess of
get
limits,
fied)
could
need-
promised
the Assured
the defense
personal uninsured
to his
policy.
is
ed defense
to be offered
The defense
lawyer
by hiring
at
another
fortune
the Insured
‘to
suit
defend
**
Indeed,
expense.
it is diffi-
injury
own
alleging
De-
*.’
how,
con-
as the Insurer
inexorably
cult
see
tied into either
fense is not
antagonistic
tends,
is
notice
actual,
payment
or the
ultimate
conflicting
Fidelity
The Insurer
interests.
American
&
amount
it.
give
primary
de-
Pennsylvania
Casualty
Thresher
one
interest:
Co.v.
policy promised and
Cir.,
which the
men,
No
fense
F.2d 453.
perform
promise in
accordance
claims
mention is made of
policy
within
the local law
Next,
the standards of
with
can-
limits.
the notice
faith).
good
(prudence
its inter-
expense
If
the Assured
shift to
antagonistic
Assured, it
affording
ests are
the defense which
of
policy
promise. Its con-
promised
has not fulfilled this
him.
is what
That
tract,
specified
limits,
dollar
agreed,
with
ex-
Insured
at
its own
perhaps put it in
difficult
pense,
supply. Finally,
a somewhat
always
position.
act
But
it must
separate
can do.
clear what
counsel
(good
prudence
requisite
settlement,
care
faith
terms
out)
spells
local
toward the As-
is,
course,
law
left
Insurer. This
course,
*5
may,
means,
course,
sured’s reinterest.
It
not at the unfettered
interest,
properly
good
consider its own
but
whim of the Insurer but rather as
may never,
forget
(or negligence
it
never
that
faith
as the local law
Fidelity
of N.
prescribed)
its Assured.
& Cas. Co.
cause of
dictates a certain
Robb, Cir.,
5
F.2d
action, settlement, trial,
Y. v.
473.”
or the like.
obliga-
apart
But
from the Insurer’s
lengthy quotation,
is of
This
but
is a
(good
tion
use
to
faith
care
great clarity
definitely at
such
and so
prudence
might be),
or
as the case
controversy
it
of this
that
the heart
leeway
little
is afforded
to
so-called
repeating.
well bears
‘independent’
acting
counsel
for the
decision,
p.
it
that
was
533]
In
[at
Assured’s excess interests.
isWhat
properly
pointed out that failure
further
settles,
encourages
he
?
to do
If he
or
appeal
illustration
“a further
was
by
settlement
direct contact
handling
management
bad
damage
plaintiffs
plain-
suit
or the
case”.
counsel,
tiff’s
he invites a serious
language
following
challenge
need
also
that the
We
Assured has declined
concern
aroused
which should have
cooperate
with the Insurer whose
of the Insurer:
opposed
counsel is
to the idea of settle-
worse,
exposed
ment. Or
he is
to the
charge
an-
nowhere
“There is the
charge
annexed
he
in the
that
has connived
controverted
with the
or
swered
array
despite
of dis-
papers,
enemy.
merely
purpose
If his
to de-
is
sup-
tinguished,
counsel
conscientious
legalistic
mand in
terms that
In-
nominal
by
in the
plied
the Insurer
surer
it
settle
amounts to no
suit,
damage
the whole
defense
more than what the Assured could do
adjusters
thing
being directed
was
being
after
event with the result
having insuffi-
other functionaries
or
determined,
the fact a demand
ability
either
cient
made,
pres-
was
but
absence or
prudent course
to choose a
direct or
requisite good
faith,
ence of
or bad
intelligent
or determine
of action
good
prudence
imprudence,
as the case
just
case was
faith
what
might
short,
pur-
be.
we see little
probabilities terms of
worth
pose
point
at this
in the assertion that
event
trial.”
success
failure
because the Insurer called the As-
remand,
allowed
sured’s attention to
the Insurer was
obvious fact
On
joined the
that he
was sued in
to introduce new wrinkle.
excess
coverages
company
19(b)
A
B
der
Fed.R.Civ.P.
Donaldsons under
pleaded
satisfaction of
shall:
accord
judgments.
in favor
found
A
(a)
in-
defend
suit
appeal,
second
of this defense. On
trip
alleging
injury, sickness,
sured
such
again
Court,
reversed
to this
we
seeking
disease or destruction and
solely
directed trial
between Smoot
thereof,
if
even
account
Farm,
Farm
and State
Smoot v. State
groundless,
suit
false or
such
Co., Cir., 1964, 337
Mut. Auto. Ins.
fraudulent;
company
F.2d 223.
negotiation
investigation,
make such
claim or suit
settlement
evidence,
receiving
jury,
After
* *
expedient
as
deems
it
below,
special
in the Court
returned a
provision
Of
noted on
(1)
verdict in
it found
that State
which
appeal
it,
negligent
the first
Farm was
in the manner in
obligation
pro-
policy perhaps
to the
“The
carried out its
insurance
distinguishing
vides a
insured under
automobile
basis
negli-
policy;
(2)
performance
standard
insurance
gence
that such
between
insured;
damage
general
resulted in
settlement and
ac-
defensive
(3)
guilty
promise
tions. The
Farm was
bad
defend is stated
positive
terms
faith
carried
while
of settle-
manner which it
obligations
insurer;
(4)
ment
out its
is couched in terms of discretion
* *
bad faith resulted in
Smoot v. State
Mut.
Co.,
insured;
(5)
Cir.,
plaintiff
that the
en-
Auto. Ins.
525, 534,
F.2d
special damages
titled to
fn. 19.
in the sum of
$23,858.40; (6)
en-
mind,
Doubtless with the footnote in
general damages
titled to
in the sum of
appellee
observes,
here
$10,000; (7)
entitled
appellant
“The
seems
have con-
punitive damages
$10,-
in the sum of
*6
separate concepts
fused two
of law.
000;
(8)
and
defendant
entitled to
was
concept
regards
The first
to be noted
attorney’s
recover
fees in the sum of
the standard of
care
conduct re-
$21,929.20.
general
quired
rejecting
Then
a
followed
ver-
an
in
insurer
an
$65,787.60.
offer
dict for
to settle
the
within
limits of its
liability policy.
concept,
The other
highly
concern,
With
understandable
germane
far more
to the case sub
$2,500
permit-
now that a
claim been
judice, regards the standard of care
proportions,
ted to
to
balloon
required
or conduct
of an
in
insurer
urges
to
it was error
overrule its
the conduct of the defense of its in-
(1)
motion for new trial because
promise
sured under its
ex-
to defend
negligence
should not have
pressed
positive
liability
terms in its
jury;
(2)
been submitted to
the evidence
policy.”
finding
was insufficient to warrant
arguing
negligence
In
that the issue of
faith;
(3)
of bad
there
no evidence
was
should not have been
to
submitted
support
general damages;
to
award
jury,
points
State Farm
to Cotton States
(4)
punitive
award
Phillips,
Mutual Insurance Co. v.
fact;
(5)
without
basis
law or
and
Ga.App.
(1964).
S.E.2d
sup-
there was insufficient evidence to
post judg-
Cotton
dealt
States
awith
port
the award of
fees.
ment failure to settle and held that bad
up
We shall take
these contentions in
faith,
merely negligence,
must be
the order made.
proved if the insurer is to be held liable
policy
for
over the
limits for
Negligence
1.
refusing to settle.
would have been
We
view, however,
ap-
of the
that
policy provided,
this rule
The insurance
plied only
respects
to a
refusal
settle because
“As
the insurance afforded
Court further held that
insurance
policy
the other terms of this
un-
employed
man,
year
twenty-four
old
charged
duty of
company
with
was
top of a
sub-contractor,
fell from
investigating
a
exercising ordinary
care
project
sus-
construction
on a
ladder
in the determination
of whether
a case
injuries
rendered
spinal
which
tained
it.
to defend it
to settle
permanent quadriplegic.
total
him a
us,
however, that
clear
seems
jury
$750,000. The
verdict
for
sued
He
about
this issue was settled
doubt
cov-
insurance
$300,048.38. The
for
was
Appeals
on June
Court of
$100,000. Before
erage
amounted
6,1967,
on Unit-
in its full
decision
for
to settle
trial,
offered
Fidelity
Guaranty
ed
Co. v.
States
trial,
During
to set-
offered
he
$95,000.
Evans,
ease the
809.
that
S.E.2d
company
$85,000. The insurance
tle for
owner of
automobile had a
investigated
thoroughly
the case
had
policy
insurance
in the
with
insurer
proof of lia-
there
no
insisted
$10,000.
amount
Prior
a
ver-
bility
its insured and
dict,
the insurer
have settled a
could
in excess
settlement
consider
fused to
against
$9,500.
claim
for
The
him
case
declining
effectively
all
$25,000, “thus
went
trial
a
returned
$300,000
After
to settle”.
demands
$25,000.
judgment
verdict for
The
could
granted, con-
verdict, a new trial was
$10,000,
have been settled for
which the
damages. Be-
solely
to the issue
fined
company
insurance
refused.
likewise
On
insured,
place, the
new trial took
fore the
appeal,
judgment
affirmed
com-
approval
the insurance
the full amount. The insured then sued
the amount
pany,
settlement
effected
judgment
insurer
and obtained
company
$115,000.
insurance
The
portion
the excess
the insured
policy
paid
limits and
had been rendered
him. The
alleging
remaining $15,000,
sued for
Appeals
Court of
affirmed.
It held that
negligently
company
insurance
duty
suit
inwas
tort and involved a
claim
failed
settle
faith
bad
alleged
duty, citing
and an
breach of that
court
trial
limits.
within
our
former decision in
299 F.2d
com-
the insurance
a fact
found as
negligent
its in-
pany
been
proceeded
say
The Court
“As
the case
preparation of
vestigation or its
professional
suits,
defense
[the
tried,
properly
degree
must use
insurer]
of skill com-
of counsel
the conclusion
professional
mensurate with such
stand-
company
absence
insurance
champion
insured,
ards. As the
opinion,
as to
*7
liability
an honest
was
it
paramount
must consider as
his inter-
court
good
trial
the
faith
the issue
est,
own,
rather
may
than its
and
real-
counsel
and its
held that defendant
gamble with his funds”.
that
their
chance
also the
was
ized there
quoted
The Court
approval
the
wrong
opinion
be
judgment
and
majority
rule that “The insurer must
liability
established
if
were
that
and
accord the
interest
the insured the
be a
there would
probabilities
that
were
same
gives
faithful
consideration it
judgment.
The
very
excess
substantial
own interest”.
the evidence
further held
trial court
Under
these considerations
the Court
any consideration
failed to disclose
terminology,
said that
seeming to use
upon
in-
company
effect
negligence
disjunctive
bad faith and
rejected.
were
if the settlement
sured
tests,
little,
alternative
means
rather
held
further
therefore
court
The trial
significant
thing
is the factual
company
not act
did
the insurance
light
situation
duty
good
liable
faith and
was
(italics ours).
exists
judgment
The
$15,000.
the insured was affirmed.
Appeals held:
The
Court
The case of Potomac Insurance Com-
the law
pany
Cir.,
established
Company,
“It
is well
v.
10
was
Wilkins
duty imposes upon
1967,
the insurer
April 18,
decided
A
exercise control over of these claims fi- faith, and honest and conscientious and the defense At suits. support- delity proof abundantly to the common interest trial below allegations. prerequisites'for in determin- insured as well as itself ed The reject ing accept an of- whether allowance fees were am- ply proven. insurer of settlement. fer While give may properly to its consideration Damages 2. General interest, good it faith must own give suit It seems clear equal Smoot’s at least consideration one in tort. are recov insured, General if it fails interest of and Georgia law. so, erable in tort under actions it acts in United do bad faith. 185, Ga.App. Lipscomb Watkins, Fidelity Guaranty 28 v. States Co. preroga (1922). Lembke, Cir., 569; 110 502 It is 328 Moore S.E. 10 F.2d Guaranty Fidelity tive of to award v. United States Co., Cir., 972; an amount consistent with evi & 325 F.2d Traders R. Co. v. Hol dence. Seaboard Air Line Ins. General Co. v. Rudco Oil & Gas loman, 16, 21, Ga.App. Co., Cir., 102 S.E.2d A.L.R. F.2d 621 [142 (1958). 799].” he tried to Smoot testified that The ease one the cause in which moving sell his house on from Savannah unclear” accident “was somewhat to do so because but was unable “largely More- circumstantial”. judgment constituted the Donaldson over, there was reason to believe lien it. he lost house Later neg- contributorily had been inability payments, meet ligent. Counsel the insured was sat- by FHA his as a result of foreclosure there isfied was sufficient circumstantial destroyed. $10,000 Thus, the credit was special damages prayed evidence to take the awarded for and on settlement. insisted evidentiary cannot be said be without Appeals of company by refusing concluded that support. Indeed, foresaw this this Court the insurance to ne- damage appeal element of on the first gotiate subjected unduly settlement observed, long “So liability substantially insured to in ex- outstanding on the remains as a lien policy coverage, cess of his did property Assured’s he is in a thwarted equal afford consideration to the inter- disposition it”. at 530. 299 F.2d insured, ests of the and that the insur- company, therefore, ance not act in did Damages 3. Punitive good faith in the matter of settlement. support $10,000 of the award however, As to was ob- punitive damages appellee cites fol- inescapable. vious and The condition of lowing Georgia statute: injured becoming pro- woman was every ag- “In be tort there gressively worse, yet Farm han- gravating circumstances, either in the already dled the claim as indicated. Ob- *8 intention, or the jury may give in act that event viously, aggravated there was a far more additional good lack of faith than toward Smoot wrongdoer either deter from that which resulted in in Poto- repeating compensa- trespass or as mac Insurance. feelings tion for the of wounded plaintiff.” Ga. Code Ann. 105- Section previously This Court noted of (1933, 1956). 2002 Revised allegations quite this “The were already It is of this case that law charge good sufficient faith want of “ * * * here we have a tortious non- rejecting in settlement offers within * * * ”, performance of a contract generally limits and in the han F.2d at 530. dling defense,” 531. 299 F.2d at agree Georgia record shows Farm at all State We under law total, finding total, support times exercised almost if not that the must a evidence any (50%) sums fifty percent of entire want misconduct or of wilful at- a reasonable presump- constitute covered would torney’s raise care which of of these in this case. One fee to conse- indifference of conscious tion a attorneys practicing in Ga.App. law Sa- had been Mangum, 107 quences, Mills v. years. thirty-nine Counsel (1963) 67, vannah for and other 131 S.E.2d proof pro- of his by Judge his waived in Ainsworth cited cases dissenting opinion. saying agree by qualifications “We fessional cannot We certainly Brannen’s waive Mr. only most will bad the circumstances revealed that management very dis- qualifications. fine and He is a prudence. We lack tinguished Another of the at- counsel”. prolixity deliberately or re- avoid torneys been either Chair- 1961 had in since peating facts this connec- case Bar every point Member of in man or a Savannah raised with each and tion All four on Fees. appeal. Association Committee hold that this We attorneys unequivocally these testified ample facts from all the warrant to infer fifty percent particular that in in this insured that the insurer as (50%) would be amount recovered ineffective to settle in its its refusal testimony Their no- handling guilty reasonable fee. rights in of his court was contingent any fee con- legal where alluded and of a reckless dis- wilfulness counsel, al- rights. tract Smoot and regard between of Smoot’s though such contract existence Attorney’s Fees injected into the evi- had earlier been At since 1910 [Ga.Civ. least propounded to dence cross examination 4392], provided Code 1910 as now § Farm. None counsel for State Smoot (1933; Code 20-1404 testimony § these four of was any 1965), it has been law Revised Georgia objected to, Farm at nor did State if has acted a “defendant any time evidence con- introduce faith, stubbornly in bad or has been the testi- At close of tradiction. mony all litigious, plaintiff has un caused unsuccessfully moved counsel necessary expense, trouble testimony. strike this may attorney’s part of as a allow” fees charged the issue the On this expense litigation. In O’Neal jury as follows: Spivey, (1928) 167 Ga. S.E. litigation expenses are not “The Supreme Georgia (opinion the by Court of part of the dam- generally as a allowed Russell) Chief Justice held that ages; has acted if the defendant species one of the three above mentioned stubbornly faith, or has been bad recovery may of bad conduct authorize a litigious, or has caused fees under this section expense, the unnecessary trouble implicit opinion code. in the jury may allow them. contract absence charge you that connection compensation may quan on a be allowed if from the evidence find tum meruit basis. acted bad the defendant case that complaint, In his sued attor- Smoot stubbornly litigious has been faith and ney’s following language: fees Sergeant plaintiff, has caused “(e) petitioner That unnecessary ex- trouble equal to in sum defendant attor- pense, you reasonable award fifty percent (50%) of all other dam- though may neys fees, be that even ages prayed for as reason- hereinabove yet paid the at- able fees because defendant necessary rendering torney services has acted bad faith and has been *9 any charge you award I for him. stubbornly litigious and has caused attorneys should be in this case fees of plaintiff unnecessary ex- trouble and basis, quantum meruit on a determined pense.” may any irrespective of which contract at- plaintiff exist between the torney cause, mem- trial four On the of the fees. of such to the amount Bar bers Savannah testified Now, quantum simply meruit means any event, cross examined. In the Court attorneys specifically that the fees be deter- jury should instructed the not to any be a contingent mined the basis of what would consider fee contract. performed for the work reasonable fee Thus, decided the reasonable- particu- under the circumstances of ness of fee on uncontradicted testi- lar referred ease. The bad faith above mony which came from witnesses whose to attorneys which would authorize award professional qualifications admit- were faith on fees refers bad ted. part of the defendant in the trans- Georgia true is plaintiff’s action out of cause of which approved con neither nor Courts have action arose. contingent percentage demned recov considering or not Now in whether ery fixing provid as a fees basis entitled this case is ed In the of our 20-1404. exercise § attorneys fees, charge an award of I no reason own we can see valid fees, as an element condemning contingent it. The use of aggravat- are not a employment attorneys by fees for the respect ed or additional people financially otherwise unable to charged have heretofore employ counsel is bound have been you. Attorneys fees, in a practice common this statute was when be awarded as proof enacted. of this view of covered addition record, to hold that basis for the such a damages.” such other imper consideration of reasonableness is excepted Counsel for State to missible as matter law would charge. reading A appreciable nullify extent the statute. cases, including Spivey, supra, O’Neal v. ruling Such a would mean that citizens charge leaves no doubt that the was le- expecta without funds or reasonable gally correct. pay tion of funds with which to a cash Appellant says, brief, day now its fee could be denied their court for faith, fees could be awarded lack of counsel. The victim bad litigiousness, unnecessary because there nowas bad faith. The stubborn expense solely already found otherwise and we have held re lack of financial support there opportu was evidence to sources would stand without his finding. nity redress, whereas those with funds argued, It is could invoke and would obtain the further “There was no relief evidence ordained statute. We hold as to what was a reasonable moneyed subject that the fee; statute is not only such a cash but the evi- self-defeating interpretation. subject contingent dence It would on the was that fly say in the (%) fees face of reason to that it of one-half the amount recov- any purpose usually ered or intent. A were rea contracted for. We exactly sonable fee are term im authority aware of what the no which would plies regardless computa authorize whether its consideration begins gross percentages, tion other from than reasonable cash ex- taking penses legiti into agree. consideration all of the fees”. We cannot aspects mate of the case. In the place, first counsel has [unin- tentionally misquoted so, no if Even this were how doubt] the rec- Attorney ap ord. Perry categor- can Brannen this Court exercise of ically pellate jurisdiction factually contingent ignore testified that “a fee fifty percent (50%) testimony recovery” overturn the uncontradicted professional qualifica be nothing reasonable. He said witnesses whose about (%) “one-half tions at amount were admitted? recovered award [be- ing] usually torney’s contracted fees must affirmed. for”. The other be three exactly testified painfully to the We are of what has aware effect, same did not mention happened “usual” con- Farm in this case. tingent all, fee brought contracts at Unfortunately, litigant were not
341
destroyed his credit. Under
value
upon
For
itself.
consequences
the
jury
facts
of unfavorable
plain- mountain
to this
received,
contract
it sold a
finding
it did.
in
as
was warranted
itself to
it bound
tiff-appellee in which
policy.
of
the limits
protect him to
is
Judgment
Court
District
The
state-
Company
taken
things
had
Smoot’s
The
in all
Country
thus
he left
ment before
Affirmed.
had
he
ad-
of his
had notice
Judge (concur-
keeping
AINSWORTH,
negligence in not
Circuit
mitted
part):
colliding
dissenting
ring
part
the vehicle
in
with
to
in
lookout
avoid
only
question
real
The
of him.
ahead
agree
opinion
the able
I
damages.
the amount
case was
majority
to affirmance of all awards
as
of Guam
on the Island
While Smoot
except
jury
case
those
in this
Damages
made
keep
appellant
him informed
failed
(1)
sum
Punitive
for a
repeated opportunities
to settle
Attorney’s
equal
(2)
$10,000
Fees
coverage.
relatively
portion of its
minor
damages (i. e., the
per
of all
50
cent
condition of
him of the
It did not inform
fees)
$21,929.20
sum of
as
case to
Mrs. Donaldson.
go
allowed
these,
jury.
I
As to
awarded
litigation
and then informed him spectfully dissent.1
contingent liability
that since there was
Damages
Punitive
beyond
coverage
he
his contract
imposition
Georgia
authorizes the
employ
law
his
counsel. This
was free
own
damages
exemplary
thought
punitive
where
said what
about
on
of facts
good
is affirmative evidence
appeal.
there
For no
cause
first
malice, fraud,
misconduct,
showing
shown,
wilful
Company
for the
failed
counsel
primary
oppression,
that entire
duty
preserve
wantonness
in their
appellate
Smoot’s
pre-
rights
care
raise
process want of
which would
either
toas
sumption
indifference
of a conscious
for him when he
out of the
issued
consequences.
Mangum,
Country
Mills
107 Ga.
appeal
v.
to an
from the
or as
614,
67,
(1963);
original
App.
judgment
69
131 S.E.2d
rendered
him.
Sowell,
Georgia Ry.
damage
Central
Co. v.
When
suit came
coun-
(1907).2
Ga.App.
Even
Company
formed.6 There is doubt no long, valuable, services were detailed and per cent award of should
stand under of this the circumstances retried, and this issue should be legal proof as to the reason-
able, actual value services.
I, therefore, respectfully concur part.
and dissent Mary Kelly, M. KELLY and Leo Rudolph Trapano, Charleston, L. Di W. Appellants, (Thomas Maroney, Va. P. and Di Tra- pano Mitchell, brief), appellants. & on Hospital, Edwin CHILLAG and Holden Inc., corporation, Appellees. Anderson, Charleston, Wilson W. Va. (Carl Stucky, Jr., Steptoe F. & John- No. 11285. son, Charleston, Va., brief), W. United Appeals States Court of appellees. Fourth Circuit. HAYNSWORTH, Judge, Before Chief
Argued June 1967. CRAVEN, and BOREMAN and Circuit July 26, Decided 1967. Judges. PER CURIAM. appealed judg- has from a
ment entered in her favor her action probably “A. You have discussed it with me “A. I think it is reasonable during past years. five or six under the circumstances of the case.” you “Q. Have had occasion to become obvious that the that the knew appellate aware of the work per contingent had a 50 cent been done in this case? attorney simply contract with his Yes, sir, it, “A. some of added this amount its award without great detail, but some of it. reference whether fee was fair or Sir, you you “Q. do feel that can tes- reasonable in the face of the instruc- tify, your knowledge from tions of Court that fee be should years, pending that has been over these established not on the basis of the con- your experience practic- parties, quan- and from as a tract between but on a ing attorney community, in this can tum meruit or reasonable fee basis for testify not, contingent performed. whether fee work Its action was fifty per therefore, basis of recovered, cent of all an exercise discretion but fifty percent automatic, unquestioned acceptance covery arrangement. ais reasonable fees? fee contractual