Mutual Life Insurance v. Chambliss , 131 Ga. 60 ( 1908 )

Beck, J.

(After stating the facts.)

1, 2. As ruled in the first headnote, the court did not err.in overruling the defendant’s demurrer to the petition; and we can not say that the allegation as to bad faith upon the part of the defendant, in the transaction out of which the cause of action arose, was entirely without evidence to support it. While the evidence for the plaintiff upon this point is not entirely clear and satisfactory, we can not say that the jury were not authorized to find that the defendant company, through its agents, at the time of securing an application from the plaintiff for a policy of insurance upon his life, by fraudulent means and practices procured in advance of the issuance of the policy an assignment thereof in blank, which blank the agents afterwards filled with the name of the party to whom, without the knowledge of the plaintiff, they delivered the policy, and collected from the party last named and continued to collect for several years the premiums upon the policy. The credibility of the evidence of the plaintiff himself was a question for the jury. They accepted it as true; and treating it as true, not only were the above facts made to appear, but it is also in proof that, in order to carry out the fraudulent scheme, the plaintiff, who had made application for insurance, was informed that he “had not passed,” and remained in total ignorance of the existence of the policy for several years after its issuance, until a notice of a premium about to become due came into his hands through the mails. And all this being true, a clear instance of the defendant having acted in bad-faith is established. Counsel for plaintiff in error cite the case of Traders Insurance Co. v. Mann, 118 Ga. 385 (45 S. E. 426), wherein it was ruled that “expenses of litigation are not allowed for bad faith in refusing to pay, but where he [the defendant] has acted in bad faith in the transaction and dealings out of which the cause of action arose.” Other cases in which the same ruling is made are cited. In the present case it is apparent that the defendant’s agents, acting in the scope of their employment in connection with the transactions and dealings relative to the procurement of the application for the insurance and the issuance of the polic3>-, were-guilty of acts done altogether in bad faith, and which were fraudulent throughout; and the allegations relative to the bad faith with which the defendant had acted in' the transaction were sufficiently alleged in the petition to withstand the demurrer thereto.

3. Error was assigned upon the court’s ruling “in admitting in evidence, over the objection of counsel as irrelevant and illegal and not binding upon it, and also as not competent to prove it by plaintiff, the following testimony of plaintiff: eI thought Judge Hixon’s services [plaintiff’s counsel] was worth $250, under what has passed between me and the company, and the nature of tlie case, and all.’ ” The plaintiff, being entitled to recover reasonable attorney’s fees, should have been permitted to prove what amount should be reasonably allowed as compensation for his attorney; and having stated facts and circumstances relative to the employment and the services of his counsel in connection with the case, it was competent for him, after stating the facts, to give his opinion as to what would be a reasonable fee under the circumstances; and what we have just said is applicable also to another ground ,in the motion for new trial, complaining of the admission of the evidence of another witness tending to show what would be a reasonable fee for plaintiff’s counsel in this case.

4. Several grounds of the motion assign error upon the charge of the court. The exception to the excerpts of the charge contained in those grounds is general, and no attempt was made by counsel to indicate wherein the giving of these instructions was erroneous;' and inasmuch as those portions of the charge thus excepted to stated principles of iaw correct in the abstract, the assignment of error was without merit.

5. But while the jury'were authorized to allow, under the evidence in the case, -as a part of the expenses of litigation, a reasonable amount as attorney’s fees, we know of no authority for allowing plaintiff himself compensation for the time lost by him in attending to this litigation; and the verdict, so far as it awards him damages as compensation for his lost time, was unauthorized and must to that extent be set aside. Accordingly the judgment is affirmed on condition that the defendant in error will, within thirty days after the filing of the remittitur in the office of the clerk of the superior court in Sumter county, write off $50 awarded by the jury in their verdict “for his lost time.” If the defendant in error declines to write off the said sum, then, in accordance with this judgment, a new trial is granted.

Judgment affirmed, on condition.

All the Justices concur, except Evans, P. J., and Athinson J., disqualified.