1. A petition by an insured seeking to recover from an insurance company the full amount of a judgment or judgments against an insured because of the refusal by the company in bad faith to settle the judgments against the insured, which were in excess of the policy limits, by itself paying an amount within the limits of the policy plus an additional amount to be furnished by the insured, does not state a cause of action in the absence of an allegation that the judgment creditor would have settled or agreed to settle the judgments for the amount for which the company was requested to settle.

2. Section 56-1206 of the Insurance Code, providing for the recovery of damages of not more than 25% and all reasonable attorney's fees by the insured from the insurer when the insurer refuses in bad faith to pay a claim covered by a policy of the insured, does not apply to bad faith in the failure or refusal to settle a claim before judgment against the insured under an automobile liability policy, where the insurer obligates itself to pay "all sums which the insured shall become legally obligated to pay as damages" arising out of described automobile collisions, and further that no action shall be brought against the company "until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company."

3. The other charge excepted to was not error.

4. The court did not err in overruling the motion to dismiss the motion for a new trial.

DECIDED OCTOBER 21, 1964 — REHEARING DENIED NOVEMBER 3, 1964.

W. L. Phillips brought suit against Cotton States Mutual Insurance Company in two counts. The pertinent allegations of count 1 are substantially as follows: That on or about February 5, 1961, the plaintiff was involved in an automobile collision with another automobile; that at that time the plaintiff was insured by the defendant company against bodily injury liability for $10,000 to each person and $20,000 for each accident, and against property damage liability in the amount of $5,000; that the occupants of the other automobile, Homer B. Mobley and his wife, Jurita F. Mobley, filed separate suits against the plaintiff in the United States District Court for the Southern District of Georgia, Augusta Division, alleging his negligence and praying for damages of $33,111.22 and $72,631.40 respectively; that the defendant insurer's investigative file showed that the present plaintiff was liable for the Mobleys' injuries and that they exceeded the policy limits; that on December 5, 1961, the plaintiff requested the defendant in writing to settle the suits; that on December 11, 1961, Mr. and Mrs. Mobley obtained verdicts of $10,000 and $22,500 respectively; that on February 7, 1962, the plaintiff again requested in writing a settlement by his insurer; that the plaintiff is in the real estate business and since the judgments were rendered against him he has been unable to transact this business; that on March 17, 1962, the defendant entered into an agreement with the Mobleys in which "they" paid $10,000 on the judgments and "they" have failed and refused to pay the balance of the judgments although the plaintiff has demanded that "they" do so; that the defendant is liable for the unpaid balance on the judgments, $22,500, plus interest, court costs, damages and attorney's fees, on account of its bad faith in failing to settle the suit and the judgments within the policy limits, pursuant to the plaintiff's requests.

The allegations of count 2, which prayed for damages of $10,000 for the balance due on Mr. Mobley's judgment, plus penalty and attorney's fees, are substantially similar to those of count 1, but also include the following: That the defendant had failed to appeal the Federal District Court judgments and the time to file appeals had expired; that the defendant had brought an action for a declaratory judgment to determine its liability under the policy; that the court determined in that action (affirmed; Cotton States Mut. Ins. Co. v. Phillips, 108 Ga. App. 56, 131 S.E.2d 803) that the defendant was liable for payment of $10,000 on both of the judgments and found that it was guilty of bad faith in failing to pay the $10,000 judgment rendered in Mr. Mobley's case, but finding no amount as damages on account thereof; that the defendant refused the plaintiff's demand, 60 days prior to the filing of this suit, to pay said judgments.

The defendant filed a general and a special demurrer, which were overruled, and a plea and an answer. The case was tried before a jury, resulting in a verdict and judgment for the plaintiff on the first count of the petition. The defendant's timely motions for judgment n.o.v. and for a new trial, as amended, were overruled and it excepts to all of the rulings adverse to it.

FELTON, Chief Judge.

1. The court erred in overruling the general demurrer to count 1 of the petition for the reason that it was not alleged as a fact that the judgments against the insured could have been settled with the plaintiffs in execution for an amount within the limits of the policy plus an amount to be provided by the insured. The only thing that touches on this matter is the statement in a letter, attached to the petition, from the insured to the insurance company, to the effect that the judgments could be settled in the manner above stated. This is not an allegation of the necessary fact. It is only an allegation that insured stated to the insurance company that it was a fact. Horton v. Johnson, 187 Ga. 9 (3) ( 199 S.E. 226).

2. The foregoing ruling rendered all further proceedings nugatory but, since the case may be tried again, it is necessary to pass on two additional questions raised on this appeal. The first is whether under the first count the insured can recover the full face of the judgment against the insurer because of bad faith in refusing to settle, and also, for the same reason, be entitled to damages and attorney's fees under Code Ann. § 56-1206. In our view, if the insurance company in bad faith refused to settle the judgments, which exceeded the limits of the policy, for an amount within the limits of the policy plus an additional amount provided by the insured, the insurance company would be liable for the full amount of the judgments. We do not think, however, that the insurance company would be liable for statutory damages and attorney's fees for bad faith in refusing to settle. Code Ann. § 56-1206 (Ga. L. 1960, pp. 289, 502; 1962, p. 712) does not provide for damages for a refusal to settle but only for failure to pay a loss covered by a policy. The charge authorizing the recovery of damages and attorney's fees for bad faith in refusing to settle, under count 1, was error.

3. The court did not err in charging the jury that the insurance company was charged with the duty to exercise ordinary care in investigating a case in the determination of whether to defend it or settle it. This charge was not error as it stated a correct principle of law. It did not by itself negative the proposition that bad faith was required to subject the insurance company to liability under the first count.

4. The defendant in error filed a cross bill of exceptions, seeking to dismiss the plaintiff in error's bill of exceptions on the ground that the brief of evidence was not filed in accordance with the court's order of November 21, 1963, which provided, in part, as follows: "It is further ordered that the movant have until the hearing, whenever it may be, to prepare and present for approval a brief of the evidence of said case, and the presiding judge may enter his approval thereon at any time, either at term or vacation, and if the hearing of the motion shall be in vacation, and the brief of the evidence has not been filed in the clerk's office before the date of the hearing, said brief of evidence may be filed in the clerk's office at any time within ten days after the motions are heard and determined." (Emphasis supplied.) The hearing on the motions was held on January 16, 1964, and the brief of evidence was filed with the clerk of the court on March 13, 1964. The defendant in error construes the order to require the filing of the brief of evidence at or before the time of the hearing, whereas the order requires only its preparation and presentation to the court for approval at that time. It is not alleged that the brief of evidence had not been presented to the court at the time of the hearing as required by the order and it is therefore assumed that, at the time of the hearing, the court had in its possession the brief of evidence, which was necessary in order to determine the issues raised by the motions. Concerning the question whether the brief of evidence was timely filed, regardless of whether the motions were "heard and determined" on the date of the hearing (January 16, 1964) or on the date of the order on the motions (April 15, 1964), the motion to dismiss was properly overruled. If the brief of evidence has been presented in time, the fact that it was not lodged in the clerk's office for filing as required by the order would not cause the dismissal of the motion. Burton v. State, 9 Ga. App. 623 ( 71 S.E. 1006).

The court erred in overruling the general demurrer to the first count.

Judgment reversed on the main bill; affirmed on cross bill. Frankum and Pannell, JJ., concur.