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Action for damages. McDuffie Superior Court. Before Judge Norman.
FELTON, Chief Judge.
1. Since the insurance policy which the insurer sought to cancel provided that cancellation should be by written notice to the insured, neither personal notice by the insurer's broker nor written notice to the insured's lawyer was effective to cancel the policy where the insurer's attempted written notice of cancellation to the insured was held by the lower court not to have been received by the insured, and the trial court's judgment was upheld by this court.
2. Where the lower court adjudicated in favor of the insured the issue of the insurer's attempted cancellation of a policy of insurance, this judgment is not an estoppel as to this issue, until the judgment of the appellate court is rendered and made the judgment of the trial court, and where the insurer set up the attempted cancellation as a defense following the lower court's judgment, but before the appellate court's judgment, there was not sufficient evidence to authorize the jury's award of 25% penalty and attorney's fees under the ruling in New Amsterdam Casualty Co. v. Russell, 102 Ga. App. 597 (117 S. E. 2d 239).
3. The charge of the court complained of was not argumentative and did not express an opinion.
4. Failure to charge on the measure of damages was harmless.
5. Under the circumstances the error complained of in the cross-bill was harmless.
John David Russell bought an insurance policy from New Amsterdam Casualty Co., insuring his truck against collision damages from September 17, 1958, to September 17, 1959. The truck was involved in a collision on December 8, 1958, and in suit No. 2177, filed by Russell in the Superior Court of McDuffie County, Georgia, the defendant, New Amsterdam Casualty Co., filed a defense alleging its cancellation of the policy by written notice, as required by the contract, mailed on October 20, 1958, and effective as of October 31, 1958. The jury found that the plaintiff had never in fact received such notice, and the court rendered judgment for the plaintiff on September 16, 1959. This judgment was upheld by this court on October 11, 1960, in New Amsterdam Cas. Co. v. Russell, 102 Ga. App. 597 (117 S. E. 2d 239), except for the allowing of recovery of 25% penalty damage and attorney's fees for bad faith. The same truck was involved in a second collision on June 12, 1959, and in suit No. 2292 in McDuffie Superior Court, the defendant relied for its defense upon the same alleged written cancellation of October 20, 1958, plus subsequent personal notice by its broker, Mrs. Josie Dozier, written affirmation of cancellation to the plaintiff's lawyer, and the filing of its defensive pleadings in the first case on January 30, 1959. The plaintiff amended, redrafted, then amended his redrafted petition, and the defendant amended its answer. After the introduction of evidence by both parties, the defendant made a motion for a directed verdict in its favor, which was denied by the court. Judgment was entered in favor of the plaintiff in the sum of $3,793.75 on September 23, 1960, in accordance with the jury's verdict. The defendant's motion for judgment notwithstanding the verdict was denied, and the defendant's motion for a new trial was overruled, provided the plaintiff write off $193.75 from the amount of the verdict, which the plaintiff did. The defendant excepts to the overruling of its motion for a judgment n.o.v. and its motion for a new trial. The plaintiff's cross-bill assigns error on the court's refusal to admit in evidence the record of the earlier case involving the same parties, truck, and defense of cancellation, which case the plaintiff contends is res judicata as to the question of cancellation.
1. The plaintiff in error contends that the defendant in error was put on notice of cancellation of his insurance by Mrs. Dozier's several verbal offers to refund the unearned premium, by the written notice to the defendant in error's lawyer, and by the filing of its defensive pleadings, even if the original alleged written notice was invalid. The policy's sole provision whereby the insurer might cancel it is for written notice to the insured. The judgment of the lower court adjudicating this issue in favor of the plaintiff was not final when the defendant filed its defensive pleadings, but it has since become final, hence an estoppel by judgment, by the court's affirmation of the lower court's judgment. New Amsterdam Cas. Co. v. Russell, 102 Ga. App. 597, supra. Personal notice or notice to one's attorney is sufficient in some cases, but the right to cancel a policy of insurance can be exercised only because it is reserved in the policy and can be exercised only as therein provided. Gilley v. Glens Falls Ins. Co., 81 Ga. App. 71 (1b, 1c) (58 S. E. 2d 218); Ogletree v. Smith, 88 Ga. App. 855, 856 (78 S. E. 2d 264). It follows that none of the notices which the plaintiff in error urges as effecting cancellation comply with the policy provision for cancellation, hence, the policy was in force at the time of the collision out of which this suit arose.
2. The basis of the claim for attorney's fees and damages is that the defendant did not pay within 60 days from June 16, 1959, when demand was made. At that time the Court of Appeals had not adjudicated that the defense was not made in bad faith.
The defendant in error is wrong in contending that the verdict of the jury in the first case was binding on the defendant at the time its answer was filed to the present suit, even though no supersedeas was granted. A supersedeas simply prohibits further proceeding on the judgment. Where no supersedeas is obtained the opposite party may proceed to enforce judgment complained of but it does so at its peril. Code 6-1002; Ennis v. Ennis, 207 Ga. 665, 671 (63 S. E. 2d 887). "If a judgment shall be entered within the time allowed for entering an appeal, and such appeal shall be entered, the judgment shall be suspended." Code 110-303. "No judgment or decree can under our system be said to be final until the time prescribed by law in which a motion for a new trial may be made, or writ of error seeking to set aside such a judgment has expired." Peoples Bank of Talbotton v. Merchants &c. Bank of Columbus, 116 Ga. 279, 282 (42 S. E. 490). A judgment cannot be treated as final so long as either of the parties has the right to have the same reviewed by the appellate court; and if it is so reviewed, it is not final until the appellate court judgment is made the judgment of the trial court. Twilley v. Twilley, 195 Ga. 297, 298 (24 S. E. 2d 46); Powell v. Powell, 200 Ga. 379, 382 (37 S. E. 2d 191); Garrick v. Tidwell, 151 Ga. 294 (106 S. E. 551). The ruling in Allen v. Allen, 154 Ga. 581 (115 S. E. 17) is not contrary to the rulings above cited. It would seem that under the petition as it now stands, the defendant would have had a right to contest the question of attorney's fees and damages as the grounds for such contest were the same in this case as they were in the first, under the facts.
3. The plaintiff in error's third ground of error is that the lower court erred in overruling ground 5 of its amended motion for a new trial, the complaint being that the court's charge was argumentatively in favor of defendant in error. We think the whole charge, taken in its context, gives the jury the alternatives which they may follow in reaching their verdict and does not express the private opinion of the judge.
4. The plaintiff in error assigns error on the failure of the trial judge to charge the jury on the measure of damages to be used in reaching their verdict, This failure, if such it was, was cured by the plaintiff's writing $193.75 off the verdict and judgment.
5. As to the cross-bill, if the judgment of the Court of Appeals has been made the judgment of the trial court, the court below erred in not admitting the record in the former case. The refusal to admit the record in the other case was not harmful under the circumstances.
The judgment overruling the motion for a judgment n.o.v. is affirmed; the judgment overruling the motion for a new trial is affirmed on condition that the plaintiff write off from the verdict and judgment the amounts awarded as damages and attorney's fees before the remittitur from this court is made the judgment of the trial court, otherwise the judgment overruling the motion for a new trial is reversed.
Judgments affirmed on condition on the main bill. Cross-bill dismissed. Nichols and Bell, JJ., concur.
Randall Evans, Jr., contra.
John F. Hardin, Robert E. Knox, Warren D. Evans, for plaintiff in error.
Friday May 22 23:40 EDT

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