Security Insurance v. Jackson , 54 Ga. App. 131 ( 1936 )

Broyles, C. J.

This is the fourth time this ease has been lirought to this court. For its previous appearances see 40 Ga. App. 688 (151 S. E. 410); 43 Ga. App. 13 (158 S. E. 457); 47 Ga. App. 626 (171 S. E. 301). It has also been twice before the Supreme Court. 171 Ga. 891 (157 S. E. 93); 177 Ga. 631 (170 S. E. 787). The facts have been stated in our previous decisions. On the trial now under consideration the following verdict was returned: “We, the jury, find for the plaintiff as follows: Face of the policy $2500.00. Penalty, $500.00. Attorney’s fees, $500.00. $3500.00. Premium deducted $71.85. Balance, $3428.15.”

On conflicting evidence, that portion of the verdict finding in favor of the plaintiff $2500, minus $71.85 for premium deduction, was authorized; and so far as that amount is concerned, the special grounds of the motion for new trial are without merit. However, in our opinion, under all the facts of the case, the jury were not authorized to return any amount for damages or for attorney’s fees. This was a very close and doubtful case, as shown by its many appearances before the two appellate courts of this State, and the facts in evidence before the jury demanded a finding that the insurance company believed in good faith that it had a valid defense to the plaintiff’s claim, and that its refusal to pay the claim was made in good faith and because it believed that under the facts of the ease and the law applicable thereto it was not liable in any amount. This being true, that portion of the verdict awarding $500 as damages and $500 for attorney’s fees was contrary to law and the evidence, and the refusal to grant a new trial was error. However, if the plaintiff will write off from the verdict and judgment the amounts found for damages and attorney’s fees, the judgment will be affirmed; otherwise it is reversed. The costs of this writ of error are taxed against the defendant in error.

Judgment affirmed on condition.

MacIntyre, J., concurs. Guerry, J., dissents.