Opinion
39448.
DECIDED APRIL 17, 1962.
Action on insurance policy. Emanuel Superior Court. Before Judge Humphrey.
Homer S. Durden, Jr., for plaintiff in error.
Rountree Rountree, W. E. Rountree, contra.
The motion for new trial was properly denied on both the general and special grounds.
DECIDED APRIL 17, 1962.
Luther Allmond, plaintiff below, sought recovery from Firemen's Insurance Company of Newark, N. J., for a fire loss of his peanut combine which he alleged was insured under a fire policy issued to him by that company, insuring against loss by fire up to $4,000. He alleged that, after notifying the company's agent of the loss, an adjuster from the company came to discuss the loss with him, and that at that time he demanded of the adjuster $4,000 for the total loss of his combine, but that no settlement of the loss had ever been made with him. It appears that the adjuster negotiated with the plaintiff over a period of months, after which he offered, on behalf of the company, to pay $1,898.75 in settlement of the loss, or, in the alternative, to replace the combine with another that could have been obtained from a local dealer on a trade-in of the burned refuse and a payment of $2,712.50 in cash, of which plaintiff should pay $813.75 and the company $1,898.75. The replacement offer was made pursuant to a provision in the policy that "Unless otherwise provided in form attached, this company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs and the loss or damage shall be ascertained or estimated according to such actual cash value with proper deduction for depreciation, however caused, and shall in no event exceed what it would then cost to repair or replace the same with material of like kind and quality." Plaintiff testified that he refused the cash offer because he deemed it to be less than his loss, and refused the offer of replacement because he did not deem the machine offered to be the equivalent of his own prior to the fire loss, because the company was seeking to require him to make a cash payment of $813.75 in order to effect the trade-in or replacement, and because he did not, at the time, have need for another combine. His demand for payment of $4,000 was asserted again, after which the company raised its offer of settlement finally to $2,250, which was also refused. Plaintiff sought attorney's fees and damages because of the alleged bad faith of the company in refusing to effect settlement of his loss. Defendant demurred on the ground that compliance with the provisions of the policy requiring the filing with it by defendant of a sworn proof of loss was not alleged. Defendant admitted the demands, the negotiations, and the offers of settlement that it had made, but denied any bad faith. The jury returned a verdict for $4,000 and found that bad faith had existed, awarding a penalty of 15 per cent. The court awarded attorneys fees of $1,000. Defendant, in due time, filed its motion for new trial, amended it, and now excepts to the overruling of its demurrer as well as to an order overruling the amended motion.
1. The exception to the overruling of the demurrer and the first special ground of the amended motion for new trial not having been argued in the brief of counsel for defendant (plaintiff in error), are both treated as abandoned. Code § 6-1308.
2. Under the general grounds of the motion for new trial, it is urged that, since plaintiff (a) refused to accept the replacement of the combine that was offered to him and (b) failed to submit proof as to the cost of repairing or replacing the combine and (c) likewise failed to submit competent proof as to its fair market value, the verdict is without evidence to support it.
(a) There are at least two reasons why the offer of replacement need not have been accepted here. First, it appears from the defendant's answer that the offer was burdened with a condition that plaintiff pay to the dealer from whom the replacement was to be obtained $813.75. Such a condition is inconsistent with the provision of the policy under which the offer was made. Irvin v. Locke, 200 Ga. 675, 679 ( 38 S.E.2d 289). Second, it further appears from the defendant's answer that, subsequently to the tender of the offer of replacement, an offer of $2,250 cash settlement was made. Thus, the final offer superseded all others. Moreover, if neither of these situations obtained, it would be a question for the jury to say whether the replacement tendered was of "like kind and quality."
(b) Plaintiff testified, and the company's adjuster conceded, that the adjuster informed him after an examination of the burned refuse and after checking with the dealer from whom the combine had been purchased, the cost of repairing or replacing would exceed its value before the fire loss. The law does not require a vain or useless thing of anybody. Irvin v. Locke, 200 Ga. 675, 679, supra; Johnson v. State, 215 Ga. 839 (5) ( 114 S.E.2d 35). If the cost of repairing was in excess of the actual cash value, recovery could be had for no more than the actual cash value under the terms of the policy.
(c) Plaintiff testified that the combine was purchased new by him in 1957 at a cost of $5,200, that he had kept it out of the weather and from exposure to the elements, had kept it in a perfect mechanical condition, making any and all repairs or replacements that may have become necessary, had generally afforded it good maintenance and had used it only enough to get it limbered up and in good, smooth working order. Based on these facts, he gave his opinion of its value as being $5,000. A neighbor testified that Mr. Allmond "kept his machinery in better repair than anybody I know." A former employee of the manufacturer of the combine, testifying for the defendant, said on cross-examination that "if you had a buyer and a man [who] wanted to sell," the fair market value of the machine would have been "something like" $4,400. The company's adjuster testified that he had placed a depreciation on the machine up to the time of its loss at $813.75. There was other testimony from defendant's witnesses in which opinions of value were given at much lower figures. However, we think that, since questions of value are peculiarly for the jury to resolve, and since the jury is permitted to do so upon data from the evidence before them, such as the cost of the article, its quality, and the like, and in fact upon any data in evidence upon which they may legitimately exercise their own knowledge and ideas, the verdict was amply supported and authorized here. Great American Co-op Fire Assn. v. Jenkins, 11 Ga. App. 784 (5) ( 76 S.E. 159); Brown v. Eaton-Saussy Co., 42 Ga. App. 486 (5) ( 156 S.E. 459). "A verdict will not be set aside as unsupported by the evidence when the amount of it is within the range covered by the testimony, though it may not correspond with the contentions of either party." Hawley c. Furnace Co. v. Van Winkle Gin c. Works, 4 Ga. App. 85 (2) ( 60 S.E. 1008). And see Stapleton v. Amerson, 96 Ga. App. 471 (5a) ( 100 S.E.2d 628).
That plaintiff, owner of the combine, though a non-expert, was competent to testify giving his opinion as to its value after stating the facts upon which his opinion was based, is well settled. Code § 38-1708; National-Ben Franklin Fire Ins. Co. v. Darby, 48 Ga. App. 394 (3) ( 172 S.E. 74); Cohn v. Rigsby, 60 Ga. App. 728, 729 (3) ( 5 S.E.2d 93); Isen Co. v. Wise, 94 Ga. App. 220, 221 (1) ( 94 S.E.2d 98). See Annot., 37 ALR2d 970.
The general grounds show no error. These rulings also dispose of special grounds 3, 4 and 5 of the amended motion for new trial.
3. In grounds two, six, seven and eight of the amended motion error is assigned upon the submission to the jury of the issue of bad faith. We find no error here. Where an insured has suffered a loss and the company has notice thereof, unless a bona fide effort is made to effect a settlement of the loss in accordance with the provisions of the policy, there is an absolute refusal to pay, and if the offer of settlement does not approximate the loss sustained, there is likewise a refusal to pay. Great American Co-op Fire Assn. v. Jenkins, 11 Ga. App. 784, supra; Firemen's Ins. Co. v. Oliver, 53 Ga. App. 638 ( 186 S.E. 706). Where, as here, the offer of settlement was $2,250 and the amount of the loss was determined by the jury to have been $4,000, it was a question for the jury to say whether the offer had been so small as to amount to an absolute refusal to pay, and if so, whether there was bad faith in such refusal. Aetna Life Ins. Co. v. Stewart, 49 Ga. App. 786 (5) ( 176 S.E. 777); Jackson v. Motors Ins. Corp., 97 Ga. App. 658, 661 (2) ( 104 S.E.2d 253); Reserve Life Ins. Co. v. Peavy, 98 Ga. App. 268, 269 (5) ( 105 S.E.2d 465); Canal Ins. Co. v. Winge Bros., Inc., 97 Ga. App. 782, 786 ( 104 S.E.2d 525). See generally on the matter of bad faith and attorney's fees, Edwards-Warren Tire Co. v. Coble, 102 Ga. App. 106, 111 (2) ( 115 S.E.2d 852). It was proper for the jury to determine the issue of bad faith and, if any was found to exist, to fix the amount of the penalty or damages, but, as was done here, the amount of attorney's fees must be fixed by the court. Code Ann. § 56-1206 (Ga. L. 1960, p. 502).
Judgment affirmed. Carlisle, P. J., and Russell, J., concur.