Opinion
36453.
DECIDED FEBRUARY 28, 1957. REHEARING DENIED MARCH 21, 1957.
Action on insurance policy. Before Judge Anderson. Columbia Superior Court. September 13, 1956.
Fulcher, Fulcher Hagler, J. Walker Harper, John F. Hardin, for plaintiff in error.
Randall Evans, Jr., contra.
1. Where motions to dismiss explicitly limit the attack on the plaintiff's petition to one specific ground, the court must consider only the ground to which the motions are confined.
2. Neither the trial court nor the appellate court in the consideration of a case can take judicial notice of the record and decision in another case. The same must be pleaded and proved.
3. The attack on the petition, sought to be made by the motions to dismiss, can not be made, since the attack is based on matter not contained in the petition and of which judicial notice can not be taken.
DECIDED FEBRUARY 28, 1957 — REHEARING DENIED MARCH 21, 1957.
On February 4, 1956, a petition, brought in two counts, was filed by Julian S. Reville, against Georgia Casualty Surety Company, which, after being amended, alleged in substance in count one that the defendant is engaged in the business of selling liability insurance to automobile owners; that on October 10, 1952, it issued a contract of insurance to indemnify Reville against loss to the extent of five thousand ($5,000) dollars, principal, for injuries to or the death of any one person, and a copy of the face of the policy was attached to the petition; that the policy indemnified Reville against liability which was imposed upon him by law and was in full force and effect during June, 1953, insuring a 1949 Ford coupe; that Reville was driving said automobile on June 23, 1953, and Harriss Sullivan was riding in the car with him when a collision occurred in which Harriss Sullivan was killed; that Mrs. Martha Sullivan, the widow of Harriss Sullivan, for the benefit of herself and three minor children, filed suit in the Superior Court of Columbia County, Georgia, which suit was served upon Reville and placed by him in the hands of the Georgia Casualty Surety Company; and that the Casualty Company employed its own attorneys to represent Reville, and defensive pleadings were promptly filed in his name.
The petition, as amended, further alleged that Mrs. Martha Sullivan made an offer to settle her claim for five thousand ($5,000) dollars, which offer was made to Reville, who then sought to have his insurer, Georgia Casualty Surety Company, enter into negotiations for settlement by orally requesting Honorable Earle Norman, attorney of record for Reville, to effect the settlement for five thousand ($5,000) dollars; that Reville feared the suit might result in a verdict against him for more than five thousand ($5,000) dollars because he had pleaded guilty to operating his vehicle while under the influence of whisky on the occasion of the collision. Even though this fact was known to the casualty company, it refused to entertain the idea of settlement and refused to negotiate for settlement because Honorable Earle Norman, the attorney for the company, said that the case could be won.
The petition, as amended, further alleged that the company at all times considered its own interest and placed the same in the forefront, and gave no consideration to Reville's interest and welfare, nor to the possible harm that might result to Reville through failure to settle within the policy limits; that the case was tried in the superior court and a jury returned a verdict for fifteen thousand ($15,000) dollars, in favor of Mrs. Martha Sullivan for herself and her children, in which trial, the insurer introduced no evidence in Reville's behalf nor asked him any questions before the jury and failed to offer in evidence a map and board upon which drawings were made and testified about during the insurer's cross-examination of R. W. Tomlin, a witness for Mrs. Sullivan, which map was prepared and being produced at the trial by the insurance company; that after this verdict, Mrs. Martha Sullivan made a written offer to settle for five thousand ($5,000) dollars, with interest and cost, plus five hundred ($500) dollars medical expenses, which written offer was received by said Norman, and at the same time Reville requested the company to enter into negotiations for settlement and take action to prevent the judgment and verdict from standing against him, and to settle according to Sullivan's demands, but the company again refused to enter into negotiations but filed a motion for new trial, which was denied and appealed to the appellate courts without filing a supersedeas bond; that the company did not advise Reville, nor afford him an opportunity, to have the judgment superseded pending the appeal; that while the appeal was pending, Sullivan caused Reville's automobile to be levied on and sold under the levy in July, 1955, although Reville reported the levy and the imminence of sale to the company and requested it to have the automobile released, which the company refused to do; that the automobile was actually worth one thousand ($1,000) at the time of the sale, but sold for only six hundred twenty-seven and 80/100 ($627.80) dollars.
The petition, as amended, further alleged that the appellate courts of Georgia affirmed the refusal to grant the motion for new trial, and the judgment against Reville became final; and on January 20, 1956, the company paid five thousand two hundred eighty-nine and 67/100 ($5,289.67) dollars on said judgment, contending that this was all it would pay under its policy of insurance, and after applying the proceeds from the sale of the car and the amount paid by the company, there is a balance due of nine thousand nine hundred eleven and 15/100 ($9,911.15) dollars, principal, plus interest at seven percent per annum; that expenses and inconvenience of Reville amount to fifteen hundred ($1,500) dollars.
The petition as amended further alleged that this balance remains unsatisfied and is a liability by Reville to Sullivan as a result of bad faith of the company in failing to enter into negotiations for settlement, in failing to settle the suit and failing to settle the judgment within the policy limits; that these facts amount to bad faith and render the company liable to Reville for the unpaid balance of the judgment obtained by Sullivan against Reville, and in addition thereto alleges that demand was made on January 30, 1956, for relief, but because of failure of the company to afford any relief, it has acted in bad faith, been stubbornly litigious, caused unnecessary trouble and expense, and is subject to the expense of litigation, including 33 1/3 percent for reasonable attorney's fees, 25 percent as penalty for bad faith.
The petition, as amended, in count two, adopted all of the allegations of fact as to count one above set forth, but based the right to recover on the negligence of the company instead of bad faith. The prayers are for the same amount of money as principal, but instead of the attorney's fees and penalty, there is a prayer for 50 percent of all sums recovered as reasonable attorney's fees.
An oral motion to dismiss each count of the petition was made, the sole ground of which was that each count of the petition failed to set out a cause of action against the defendant in that the Court of Appeals in the case of Reville v. Sullivan, 93 Ga. App. 23 ( 90 S.E.2d 609), rendered an opinion containing a dissent by two judges, the effect of which was to conclusively show that the defendant's failure to settle said case was not frivolous or unfounded, and that there was good reason to continue the defense thereof, and that, therefore, there could not be any negligence or bad faith on the part of the defendant company. The motions to dismiss were denied and the Georgia Casualty Surety Company excepted to the ruling.
1. The motions to dismiss the action explicitly limit their grounds to one proposition, to wit: that the fact that two of the six judges of this court dissented in Reville v. Sullivan, 93 Ga. App. 23 ( 90 S.E.2d 609), and that that fact in and of itself conclusively showed that the defendant insurance company was not guilty of bad faith in refusing to settle the case or of negligence in trying it. A general demurrer or motion to dismiss in the nature of a general demurrer on the broad ground that the petition or count does not set forth a cause of action covers all reasons or grounds which would support the broad contention. This is true even when, after making the broad averment that the petition or count sets forth no cause of action, in addition thereto, the demurrer goes on and enumerates some particular grounds, the demurrer or motion to dismiss still covers all grounds and cannot be confined to those specifically named in addition to the broad attack made on the petition or count. However, when a demurrer or motion is limited by its content to a particular ground or reason by alleging that the petition or count sets forth no cause of action " in that etc.," the only question raised is whether the petition or count sets forth a cause of action for the particular reason expressly assigned. Saliba v. Saliba, 202 Ga. 791, 795 ( 44 S.E.2d 744).
2. In order for the insurance company to be able to raise the question sought to be raised in the motions to dismiss, the record and decision in the case of Reville v. Sullivan must have been pleaded by the plaintiff in the trial court so that the alleged defects in the petition would appear on the face of the petition, or the record and decision in said case should have been judicially noticed by the trial court and should be noticed by this court which would be equivalent to the defects' appearing on the face of the petition. The record and decision in said case were not pleaded by the plaintiff in the trial court in this case so the case must turn on the question of judicial notice. The oldest cases on this question require the ruling that neither the trial court nor this court can judicially know the record and decision in another case even in the same court. Salter v. Heys, 207 Ga. 591 (3) ( 63 S.E.2d 376); Carten v. Loveless, 192 Ga. 715 ( 16 S.E.2d 711); Owens v. Williams, 87 Ga. App. 238 (2) ( 73 S.E.2d 512); O'Conner v. U.S., 11 Ga. App. 246 (4) ( 75 S.E. 110); Glaze v. Bogle, 105 Ga. 295 ( 31 S.E. 169).
It follows that since the record and decision in the case above referred to were not pleaded and could not be judicially noticed under the circumstances, the question sought to be raised by the insurance company by motions to dismiss could not be so raised, and since the motions were confined to this single question, the court did not err in denying the motion to dismiss as to each of the two counts of the petition.
Judgment affirmed. Quillian and Nichols, JJ., concur.