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Bankers Health Life Ins. Co. v. Fryhofer

Court of Appeals of Georgia
Jun 16, 1966
114 Ga. App. 107 (Ga. Ct. App. 1966)



ARGUED MAY 4, 1966.


Action for damages. Burke Superior Court. Before Judge Killebrew.

R. U. Harden, for appellant.

George W. Fryhofer, for appellee.

1. A verdict based upon evidence that is wholly speculative or conjectural cannot stand.

2. Admission of evidence of a speculative or conjectural nature over objection on that ground is error.

3. The admission of evidence of what occurred in an action brought against the same defendant as proof of the fact of what would have been the result in a contemplated action by another party, which was never in fact brought, is error.


George W. Fryhofer brought suit against Bankers Health Life Insurance Company alleging that he had been damaged by reason of the unlawful interference by the company with a contract of employment that had existed between himself and a client, Thomas J. Mallard, whereby he had been employed by Mallard to take legal action against the company to enforce his rights under a policy of insurance providing certain disability benefits. He alleged that agents of the company called upon Mallard about the matter before he had notified the company of his employment or made any demand upon it for payment of the benefits which Mallard contended he was entitled to receive, and that Mallard then informed the agents of his employment and they advised Mallard to drop the matter, stating that they would not discuss it with his attorney, that the lawyer would only spend his money and was only interested in what he would get out of it and would get every penny he had, and that if he had an insurance claim he should not hire a lawyer but write to the insurance commissioner, who would take care of it for nothing, and that because of these statements Mallard discharged plaintiff. Actual and punitive damages were sought.

The defendant permitted the present action to go into default before tendering or filing any defensive pleadings and sought to open the default, but the court, deeming the showing to fall short of any providential cause or excusable neglect, refused to open it, leaving as the only issue to be tried that of the amount of recovery plaintiff might be entitled to have.

Plaintiff testified in his own behalf, asserting that Mallard had employed him under a written contract, copy of which was attached to the petition, by which plaintiff would represent Mallard in his claim against the company upon a particular policy issued to Mallard upon a contingent fee of 25 percent of any recovery without suit, 33 1/3 percent of any recovery after filing suit, and 40 percent after trial of the case. If nothing were collected, no fee was to be charged.

He testified that "the work I would have done on Mr. Mallard's case would have been as follows: I would have had numerous conferences with Mr. Mallard; I would have read and reread numerous times the insurance policy on which the case was based. I would have examined and studied the law of [26 named states] and Canada. I would have had several conferences with Dr. Lamar Murray, Mr. Mallard's attending physician, and with Dr. Voyles, his surgeon, as to his physical condition. I would have studied and examined the Burke County Hospital records. I would have made demand upon the insurance company and probably [would have] had some correspondence with the company. I would have filed a petition, several pages in length, against the company, and obtained service through the Secretary of State. I would have participated in several hearings before the judge on demurrers, and would probably have amended the petition at least once. I would have had subpoenas issued for witnesses, and would have prepared notes as to the order of proof and the examination of the witnesses, and prepared requests for the judge to instruct the jury as to the law of the case. In all probability I would have tried the case before a jury — from a half-day to a day, and in my opinion Mr. Mallard would have made a recovery in the amount of $3,400. In my opinion the refusal to pay was in bad faith and the jury would have so found, and would have awarded a 25 percent penalty and attorneys fees in the amount of $2,500.

"The facts upon which I base that opinion are that Mr. Ira L. Murray's case against the same company was practically identical to that of Mr. Mallard, involving the same identically worded policy and both of these men were totally disabled to work, but were not required to stay indoors all the time. They could get out in the yard for fresh air, sunshine, that sort of thing. The company denied Mr. Murray's claim when I made demand on them, and forced us to trial and the jury returned a verdict for $3,400 principal, $400 penalty and $2,500 attorneys fees. Based upon what the same company did with the same policy in that case it is my opinion that they would have followed the same course of action here." On cross examination he admitted that he had not communicated with the company relative to Mallard's claim, and that his claim was based upon the assumption that the company would have followed the same course in Mallard's case as had been done in Murray's case, and assuming that the Murray verdict, then on appeal, stands up, and that it was his opinion that a similar verdict for Mallard would stand.

Plaintiff's testimony was objected to on the ground that it was all assumptions, i.e., that he was testifying as to what the insured would recover upon the policy if he had brought suit on it (without introducing the policy — which would be the highest and best evidence as to the benefits provided); and because it was assumed that if a demand were made on the company, it would be refused; and because in testifying as to the attorneys fees and damages the witness had assumed the making of a demand upon the company, and had assumed that it would have been refused, and had assumed that the refusal would have been in bad faith, and had assumed that the jury would return a verdict in plaintiff's favor on the question of bad faith, when there was no evidence that any demand had been made on the company and no evidence of any bad faith on its part, and that the evidence objected to was entirely conjecture and speculation, without any facts upon which to base it.

The evidence relative to the action of the company in Murray's case, the demand on the company, its refusal, and the result in his suit, was objected to on the ground that what happened in another case involving another individual was inadmissible because it assumed that what happened in one case would happen in another, and on the ground that what had happened in one case could not be assumed as the facts as to what would happen in another.

Another attorney, Mr. H. C. Hatcher, testified as a witness for plaintiff that "Based upon [Mr. Fryhofer's] testimony, I would say that if [he] recovered what he figured that [he] should have recovered, a reasonable attorney's fee on that basis would have been around $2,500, — on the basis of fees prescribed by the Georgia Bar Association."

The jury returned a verdict for the plaintiff for $2,500 and from the overruling of an amended motion for new trial defendant appeals.

1. We reverse. The testimony of the plaintiff as to his damages was based wholly upon speculation and conjecture, and a verdict based upon evidence of that character cannot stand. Southern Grocery Stores v. Greer, 68 Ga. App. 583 (2) ( 23 S.E.2d 484); United States F. G. Co. v. Brown, 68 Ga. App. 706 (4) ( 23 S.E.2d 443); Alford v. Zeigler, 68 Ga. App. 627 ( 23 S.E.2d 474); Globe Indemnity Co. v. Brooks, 84 Ga. App. 687, 688 ( 67 S.E.2d 176); Bartell v. Del Cook Lumber Co., 108 Ga. App. 592, 601 ( 133 S.E.2d 903); Pritchett v. Higgins, 111 Ga. App. 718, 720 (5) ( 143 S.E.2d 47). "So, where evidence is not more than a scintilla, if it is dependent entirely upon guess or speculation, it is insufficient to support a verdict." Ladson Motor Co. v. Croft, 212 Ga. 275, 277 ( 92 S.E.2d 103). There was no more than speculation and conjecture as to whether a demand would have been made on the company, and certainly it was wholly speculation that if a demand had been made it would have been denied by the company. It was speculation, too, that a suit would have been filed, demurred to and amended, and most certainly any testimony as to what the verdict of a jury would have been in the suit was the rankest speculation and conjecture. It was without probative value. B. P. O. Elks Lodge No. 230 v. Foster, 91 Ga. App. 696, 697 ( 86 S.E.2d 725).

There is nothing that would authorize a finding that the company was liable to Mallard in any sum under the policy, even if demand had been made and if suit had been brought in his behalf against the company. The policy provisions were neither pleaded nor proven. Plaintiff's contract for fees was wholly contingent upon a recovery from the company by Mallard. The testimony of plaintiff's supporting witness concerning what would have been a reasonable fee was based entirely upon plaintiff's testimony, and thus was just as speculative and conjectural in character as was plaintiff's.

While it is true that an expert may give his opinion without stating the facts upon which it is based, yet when the basis of his opinion is given and it appears that it is wholly speculative or conjectural, it must follow that his opinion is without foundation and has no probative value. Speculation and conjecture by an expert is still speculation and conjecture, and will not support a verdict. "It must be remembered that the opinion evidence is that of an expert in respect to the stated facts about which the opinion was expressed. It is proper and desirable that expert testimony should be kept within proper bounds. . . `Expert testimony is to be weighed and judged like any other, and the same tests are to be applied thereto. . ." 16 CJ 756, § 1556." Buckhanon v. State, 151 Ga. 827, 833 ( 108 S.E. 209). (Emphasis supplied).

It was error to overrule the general grounds of the motion.

2. The testimony relative to what the insurance company would have done had demand been made on it, and what would have been done in connection with the bringing of a suit against the company, and what the verdict of the jury would have been, was speculative and conjectural and its admission over the objection was error. "[I]f it appears from the [witness'] own testimony that [he] is merely surmising . . . it should be excluded. . ." English v. Georgia Power Co., 66 Ga. App. 363, 368 ( 17 S.E.2d 891). Accord, Sanders v. Chandler, 71 Ga. App. 337 (1) ( 30 S.E.2d 813). "[T]estimony which is merely a conclusion of a witness is without probative value." Patterson v. Cotton States c. Ins. Co., 221 Ga. 878, 882 ( 148 S.E.2d 320), citing Priester v. Melton, 135 Ga. 694 (1) ( 70 S.E. 646); Dougherty v. Dougherty, 153 Ga. 487 (1) ( 112 S.E. 454); Blanchard, Humber Co. v. Hagan Gas Engine c. Co., 26 Ga. App. 538, 539 ( 106 S.E. 604). "[W]e think the evidence is too meager, indefinite, and uncertain, when the conclusions of the witnesses are eliminated, to be the basis of any recovery of special damages, and that under the evidence a recovery of nominal damages only is authorized." Copeland v. Tyus Prevatt, 21 Ga. App. 485, 487 ( 94 S.E. 633).

3. For the same reason, admission of testimony as to what the insurance company had done in another case concerning the claim of another individual under the disability provisions of the same kind of policy, as evidence of what the company would have done with the claim involved in this litigation, and that the company would have acted in bad faith in denying the claim, over the objection that it was purely conjectural and that what had happened in one case as to one individual could not be assumed as the fact as to what would happen in another case as to another individual, was error, especially since it did not appear whether the policy provisions were the same or whether the basis of the claims was the same.

We observe that plaintiff asserted in his testimony that he was assuming the verdict in the other case would stand up on appeal and it was his opinion that it would do so, but in fact it did not stand. The other case to which he referred, United Ins. Co. v. Murray, 113 Ga. App. 138 ( 147 S.E.2d 656) (United Ins. Co. was successor to Bankers Health Life) was reversed, the court holding that a verdict had been demanded for the defendant. The situation is similar to that when a hypothetical question is based, in part at least, upon a false premise. Cf. Kuttner v. Swanson, 59 Ga. App. 818 (5) ( 2 S.E.2d 230).

The case of Studdard v. Evans, 108 Ga. App. 819 ( 135 S.E.2d 60) does not require a different result. It dealt only with rulings on demurrer.

Nevertheless, since an attorney's contract of employment, though contingent in nature, is a property right ( Studdard v. Evans, 108 Ga. App. 819, supra), and since plaintiff alleges a wrongful and wilful invasion of that right by the defendant, he is entitled to recover for it — at least nominal damages. Code § 105-2010; Swift v. Broyles, 115 Ga. 885 ( 42 S.E. 277). This is true even if no special damages are proven. Price v. High Shoals Mfg. Co., 132 Ga. 246, 252 ( 64 S.E. 87). But there was no legal proof of any special damages by Mr. Fryhofer, and the verdict returned was not for nominal damages. Copeland v. Tyus Prevatt, 21 Ga. App. 485 (2), supra. Nor did the jury include in the verdict anything for punitive damages. In the petition plaintiff prayed for $2,500 actual damages and $7,500 as punitive damages. In the charge the court properly instructed the jury, (as an abstract proposition) "if you find that the plaintiff has carried the burden and proven his case, you would first render a verdict for whatever actual damages you may find that he would be entitled — `We, the jury, find for the plaintiff, in the sum of blank dollars as actual damages.' Then you would go one step further and you would either find for or against punitive damages and that would be added by saying, if you find for, `We, the jury, find additional sum of blank dollars as punitive damages.' Or, if you don't find it, your verdict would then be for the actual damages and it would be silent as to punitive damages." The verdict was returned, "We, the jury, find in favor of plaintiff $2,500 damages." Accordingly, it was for actual damages which were unsupported by proof.

Concerning his actual damages, in Witham v. Cohen, 100 Ga. 670 ( 28 S.E. 505), where Witham, having purchased a majority of the stock in a bank and reached an agreement with a majority of the stockholders that he should be elected its president at a salary of $500 per month, alleged that at the annual meeting of the stockholders his election was defeated by the illegal voting of a proxy wrongfully and fraudulently obtained from one who had sold his shares to plaintiff, and that this was done wilfully and maliciously to prevent his election, it was held that a cause of action for damages was set out, but it was also pointed out that "The tort whereby he sustained his defeat could not have damaged Witham in a sum greater than that which his election would have secured to him."

By the same token, the procuring of the cancellation of the contract between Mr. Fryhofer and his client could not have damaged him in a sum greater than that which might have accrued to him as a benefit under it. How is that to be measured? It is that percentage of the recovery that his client was entitled to have under provisions of the policy as provided in the contingent fee contract. Consequently, if Mr. Fryhofer is to recover more than nominal damages he must plead and prove, by competent evidence, the extent of his client's right to recover against the company. Cf. Richards v. International Agricultural Corp., 10 F.2d 218, 219, where Judge Sibley, dealing with a situation where the defendant was alleged to have wilfully and wrongfully withheld a book of accounts making it impossible for plaintiff to collect moneys owing to him, said: "A result intended by a wrongdoer cannot be remote. Civ. Code Ga. 1910, §§ 4510, 4511 [now §§ 105-2009, 105-2010]. Nor is the damage too speculative. While details as to the solvency of each debtor and the amount due by him are not pleaded, as they should ordinarily be, the lack is excused by the allegation that the plaintiff has not the information and is deprived of it by the wilful act of the defendant. . ." Mr. Fryhofer neither pleads the provisions of the policy nor the facts showing a right of his client to recover thereunder, and the amount of his entitlement, nor offers proof thereof; nor does he excuse himself from doing so by any allegation of the petition, as was done in the Richards case. "[W]hile imaginary and speculative profits can not be recovered as damages, profits which would have been received but for the acts of the defendant may be recovered as damages when there are criteria, definite and certain, upon which an adjudication may be based." Central of Ga. R. Co. v. Cooper, 14 Ga. App. 738, 740 ( 82 S.E. 310). "[I]t would be necessary, in order to recover, to show that a benefit would have accrued to the plaintiff, and that the statements of the defendant were false and fraudulent, and were the proximate cause of loss to the plaintiff." Mitchell v. Langley, 143 Ga. 827, 837 ( 85 S.E. 1050). Accord, Swift v. Broyles, 115 Ga. 885 (1), supra.

Nothing said in this opinion is to be construed as an approval of the conduct of the agents of the insurance company or of the derogatory remarks made by them concerning the plaintiff.

We have observed it heretofore. Clinton v. State Farm Mut. Auto. Ins. Co., 110 Ga. App. 417, 419 ( 138 S.E.2d 687).

Judgment reversed. Bell, P. J., and Jordan, J., concur.

Summaries of

Bankers Health Life Ins. Co. v. Fryhofer

Court of Appeals of Georgia
Jun 16, 1966
114 Ga. App. 107 (Ga. Ct. App. 1966)
Case details for

Bankers Health Life Ins. Co. v. Fryhofer

Case Details


Court:Court of Appeals of Georgia

Date published: Jun 16, 1966


114 Ga. App. 107 (Ga. Ct. App. 1966)
150 S.E.2d 365

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