Having carefully re-examined the decision and judgment of the Court of Appeals in the light of the assignments of error, it appears that the Court of Appeals did not err for any reason assigned.
This case is here by reason of the grant of an application for a writ of certiorari to the Court of Appeals in Government Employees Ins. Co. v. Hardin, 108 Ga. App. 230 (132 SE2d 513)
. The assignments of error upon the judgment and decision of the Court of Appeals holding "the evidence created a question for the jury whether the insurer acted in bad faith in refusing to pay the plaintiff's claim," and "the trial court did not err in overruling the defendant's motion for judgment notwithstanding the verdict and the general and special grounds of the motion for new trial," and that the court could not say "the evidence as a matter of law showed that the defendant's refusal of the plaintiff's demand to repair the automobile and restore it to its former condition was justified on the basis of the facts appearing to the defendant at the time of the refusal" are as follows: (1) The court overlooked the material facts in the record that the insurer had reasonable grounds and probable cause for contesting the amounts of the demand; and (2) The court assumed the plaintiff under the insurance contract had an unconditional right to demand that the insurance company itself repair and restore the automobile and that when it failed to comply with the demand such refusal was not justified and was in bad faith, by confusing and misconstruing certain provisions of the insurance policy, and the court erred in failing to reverse the trial court and hold that the lower court should have sustained the motion for judgment notwithstanding the verdict or granted the motion for new trial on the special grounds.
This court granted the writ on the assumption that no proper demand had been made 60 days before the filing of the suit, and petitioner having failed to comply with Code Ann. 56-1206 (Ga. L. 1960, pp. 289, 502; 1962, p. 712) the verdict for attorney fees and penalty would not lie. After carefully reading the record we are convinced that the demand had been made some three or four months before suit was filed and all proof of loss waived for a like period since the insurer was insisting on damages in the amount of $474.52, whereas the insured was insisting on approximately $950 during this period of debate, which was much more than 60 days before the suit was filed. We have also re-examined the ruling of the Court of Appeals that the evidence that the defendant was insisting on repairing with used parts at a cost of $474.52 and when invited to do so was unwilling to undertake it, was some evidence from which the jury may have found that the defendant was acting in had faith, particularly where it failed to insist on arbitration but desired the petitioner to request it. That court merely held that it would not hold as a matter of law "the defendant's refusal of the plaintiff's demand to repair the automobile and restore it to its former condition was justified on the basis of the facts appearing to the defendant at the time of the refusal." There was some evidence from which the jury could find the defendant was acting in bad faith. See in this connection, Dependable Ins. Co. v. Gibbs, 218 Ga. 305 (127 SE2d 454)
. For the reasons stated above the Court of Appeals did not err in affirming the judgment of the trial court.
Judgment affirmed. All the Justices concur.