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Action on insurance policy. Carroll City Court. Before Judge Brown.
Where with regard to a material issue a question of credibility arises, a motion for summary judgment is properly denied.
Verna M. Almon d/b/a NuWay Cleaners filed suit against Georgia Casualty & Surety Company. The claim alleged in part that: the defendant insurance company had issued an insurance policy on the plaintiff's 1965 Chevrolet truck on September 20, 1967, providing protection from negligent uninsured motorists; the plaintiff sustained damages to his vehicle in the amount of $2,150 in a collision with an uninsured motorist on October 11, 1967; the plaintiff sued the negligent uninsured motorist in Troup Superior Court and obtained a judgment; the policy was in full force on the date of the occurrence; the plaintiff had notified defendant of the collision, furnished proof of loss and complied with all other requirements of the policy; the defendant had denied liability and refused payment under the policy. The defendant filed an answer denying liability. Thereafter the defendant filed a motion for summary judgment. In support of the motion was attached the affidavit of Smith Price which stated: "During 1967 and prior and for several years prior thereto, I was agent for Georgia Casualty Insurance Company and solicited business in its behalf; several years ago Mr. V. M. Almon, owner of NuWay Cleaners, purchased insurance from me, including a policy on a 1965 Chevrolet 172 ton van truck; for all policies with Mr. Almon, as well as this particular insurance purchased, under our mutual understanding I had kept the vehicle insured unless notified to the contrary; during 1967 he instructed me to cancel one policy; when that policy was cancelled the document showing coverage on the van truck was inadvertently removed and we mistakenly did not renew the policy when it came due on September 20, 1967; I never discussed this agreement with Georgia Casualty Insurance Company and they had no knowledge of it."
The affiant further testified that: "Coverage on the truck had been renewed on at least one prior occasion, and coverage for the truck which the 1965 van truck replaced had been renewed on several occasions; Mr. Almon notified me on October 11, 1967, that the 1965 truck was damaged and I realized that I had inadvertently failed to renew the insurance; on that date or shortly thereafter, I renewed the policy and dated it 9/20/67 to cover a 12-month period; at the time the policy was reissued the accident had already happened; because of my agreement with Mr. Almon, I reissued the policy and dated it back to the expiration of his policy that should have been renewed on 9/20/67; until October 11, 1967, or shortly thereafter, and after the collision of the truck, Georgia Casualty Insurance Company had no notice that Mr. Almon desired the policy renewed."
In opposition to the motion, the plaintiff filed affidavits of the plaintiff and his attorney Aubrey W. Gilbert which set out that Mr. Price stated to them that he issued the insurance policy in question on the date shown thereon which was September 20, 1967; that the policy was in force at the time the damages were sustained; that Price denied he renewed the policy after the accident was reported. There were also other affidavits to the effect that prior to the date the truck was involved in a collision, Smith Price advised the plaintiff the policy was in his office and the plaintiff could pick it up at his convenience or that Price would hold it for the plaintiff as had been done in the past. The trial judge denied the motion and after obtaining the proper certificate the defendant appealed.
The defendant contends that the summary judgment should have been granted because the evidence demands a finding that the insurance policy was not binding in that it was issued subsequent to the date of the collision. This position is without merit.
As a general rule parties may agree that a policy be antedated, in which case it takes effect on the date so agreed. 43 AmJur2d 386, Insurance, 327. However, pretermitting a determination as to the efficacy of this rule under the circumstances of this case, we consider whether the defendant established, as a matter of law, that the policy was issued after the loss occurred. While Price, the defendant's agent, stated in his affidavit that he issued the policy subsequent to the collision, the affidavits offered by the plaintiff recited that Price had told them that the policy was in fact issued prior to the collision. The policy was attached as an exhibit to the petition and the effective dates of coverage shown thereon are from September 20, 1967, to September 20, 1968.
"The true date an instrument becomes effective may be shown to differ from the date shown in the instrument itself." Irwin v. Dailey, 216 Ga. 630, 633 (118 SE2d 827), and cases cited; Pazol v. Citizens Nat. Bank, 110 Ga. App. 319, 324 (138 SE2d 442); Sprayberry v. Wright, 116 Ga. App. 748, 750 (159 SE2d 102). The Georgia cases have evidently not given recognition to the exception expressed in cases from other jurisdictions that: "where the date on an instrument is a vital part thereof, and change of date would change the rights of the parties thereto, parol evidence for that purpose is not admissible." 30 AmJur2d 175, Evidence, 1039. See cases cited in 32A CJS 447, Evidence, 963. However, even though the parol proof offered might be admissible, this is not to say that it was conclusive as to the effective date of the policy.
Furthermore, the affidavits offered in opposition to the motion attacked the credibility of the agent's testimony that he re-issued the policy after the accident. Where a question of credibility arises as to a material issue, summary judgment should not be granted. Capital Auto. Co. v. GMAC, 119 Ga. App. 186, 192 (166 SE2d 584); Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639 (3) (171 SE2d 782).
Since there is evidenced incomprehension relative to the case of Ussery v. Koch, 115 Ga. App. 463 (154 SE2d 879), (even by this court, see Raven v. Dodd's Auto Sales &c., 117 Ga. App. 416 (160 SE2d 633),) we deem it proper to briefly comment thereon and delineate the precise limits of that holding.
The case stands for the simple proposition that the mere fact that a witness may have made ambiguous or contradictory statements as to an immaterial issue would not serve to impeach him. Hence, the rule that uncontradicted proof on a material issue offered by an unimpeached witness is controlling over contrary inferences was there held applicable. The Ussery case did not broadly hold or intimate that on motion for summary judgment evidence of a contradictory statement was not admissible to discredit an affiant or that where a witness gives contradictory testimony as to a material issue his credibility is unaffected, or that where a witness is impeached his testimony must be believed. Both for clarification and the edification of the bench and bar, we therefore again expressly limit that decision to the facts contained therein. See Ussery v. Koch, 115 Ga. App. 463 (1b), supra.
There was clearly a question of fact as to vital issue of whether the policy was issued prior or subsequent to the date of the collision, and the trial judge properly denied the motion for summary judgment.
Judgment affirmed. Bell, C. J., and Whitman, J., concur.
Gilbert & Head, Aubrey W. Gilbert, for appellee.
Tisinger & Tisinger, David H. Tisinger, for appellant.
Friday May 22 16:44 EDT

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