Opinion
40927.
DECIDED OCTOBER 23, 1964.
Action on insurance policy. Fulton Superior Court. Before Judge Tanksley.
George Carroll, for plaintiffs in error.
Smith, Ringel, Martin, Ansley Carr, Hoke Smith, contra.
1. The representatives of an insured holder of a fire insurance policy who sue for the loss under the policy and seek to set aside for fraud the award of appraisers of the loss acting under the provisions of the policy, are not entitled to interest on the amount found by the appraisers which was deposited into the registry of the court as a tender to the plaintiffs as full and complete payment of all claims due by the insurance company where the jury set aside the appraisal and the plaintiffs did not accept the deposit as full payment.
2. Where a trial court makes a ruling against a party the ruling does not become the law of the case where such party wins a jury verdict on the identical question ruled upon which makes it impossible for him to test the correctness of the ruling against him.
DECIDED OCTOBER 23, 1964.
George Colevins and Anna Colevins, as executors of the estate of Helen Colevins, sued the National Union Fire Insurance Company of Pittsburgh, Pa., to recover $9,500 principal and interest alleged to be due on a fire insurance policy issued by the defendant to the deceased, Helen Colevins, together with damages and attorney's fees due to the alleged bad faith of the company in refusing to pay the loss after timely demand. The amount of the loss was submitted to appraisers selected in accordance with policy provisions who found the damage to be $5,500. The petition sought to set aside the appraisal on the ground of fraud. See Colevins v. National Union Fire Ins. Co., 105 Ga. App. 169 ( 123 S.E.2d 559). Immediately after suit was filed the insurance company tendered into court the $5,500 awarded by the appraisers in full discharge of its obligations under the policy. On the trial the jury found for the plaintiffs $5,850 for the dwelling insured and $1,332 for the contents of the dwelling, a total of $7,182, zero dollars for penalty and zero dollars for attorney's fees. The plaintiffs moved for a judgment n.o.v. on the matter of the court's refusal to direct the jury to find for the plaintiffs 7% interest on the amount of the award conditionally tendered into court by the insurance company from the date of the tender. The court overruled this motion. The plaintiffs except to it and argue and insist on it. The plaintiffs also filed a motion for a new trial, the only ground insisted on here after a new trial was denied being that the court erred in charging the jury that the matter of fixing the amount of damages and attorney's fees was for the court and not the jury. Another fact pertinent to a decision in this case is that the insurance company moved for a directed verdict in its favor on the question of damages and attorney's fees, which motion the court overruled. In his judgment overruling the plaintiff's motion for a new trial the court stated that, even if his charge that the matter of fixing the amount of damages and attorney's fees was for the court to determine was erroneous, it was harmless for the reason that the evidence did not authorize a finding that the insurance company refused to pay the loss insured against in bad faith.
1. The court did not err in overruling the plaintiffs' motion for a judgment n.o.v. on the question whether the insurance company owed interest on the amount of $5,500, the amount of loss ascertained by the appraisers, which was tendered into the registry of the court as its ultimate liability, and not as an amount to be credited on the amount of loss found by the jury. The plaintiffs sought to avoid the appraisal and succeeded in doing so. For this reason they cannot now contend that the amount of the appraisal represented any amount owed by the insurance company. Furthermore, the tender of the $5,500 was made on the condition that it be accepted as full and complete settlement of all sums due by it under the policy. The tender was not accepted and the amount fixed by the jury was the liquidated sum found to be due and it does not bear interest until after the jury verdict liquidating the amount recoverable. Fireman's Ins. Co. v. Oliver, 182 Ga. 212 ( 184 S.E. 858).
2. The court overruled the plaintiffs' motion for a new trial because his charge to the jury to the effect that the court fixed the amount of damages and attorney's fees was harmless. Under the facts of this case it was erroneous. But, it was also harmless because the evidence authorized the jury to find the loss to be substantially less than the $9,500 demanded by the plaintiffs. The plaintiffs do not dispute that in such a case no bad faith can be found in refusal to pay a demand substantially higher than a jury was authorized to find the loss to be but they contend that it is the law of this case, by which all parties should be bound, that there was a question of bad faith in refusal to pay because the court overruled the insurance company's motion for a directed verdict on the question of damages and attorney's fees. We cannot agree with this contention for the reason that the jury verdict was in favor of the insurance company on the question of damages and attorney's fees and it was precluded from testing the correctness of the judge's refusal to direct a verdict for it on the question of damages and attorney's fees and we have not been cited to any authority holding that a party can except to a finding in his favor in order to prevent a ruling against him from becoming the law of the case where the finding in his favor is due to an error of the trial court made against the opposite party. Until we find authority to the contrary we hold that a judgment which cannot be reviewed cannot become the law of the case.
The court did not err in overruling the plaintiff's motions for a judgment n.o.v. and for a new trial.
Judgments affirmed. Frankum and Pannell, JJ., concur.