1. The jurors are the triors of the facts as to the value of a house at the time of a fire; they are also the triors of facts as to penalties for bad faith.
2. When counsel has an opportunity to disqualify a juror and fails to do so until after verdict, in the absence of lack of ignorance of facts by which such juror could have been disqualified, a later objection is not cause for reversal.
3. When a special demurrer is allowed seeking the striking of a paragraph of a petition and such paragraph is rewritten and no objection is made thereto, counsel can not be heard to object at a later time.
4. When a purported affidavit is introduced and counsel for the opposite party states that there is no objection to it being introduced for whatever consideration the jury may give it, counsel can not later be heard to complain that such affidavit is harmful.
Shelly T. Waters, hereinafter called the plaintiff, filed suit against Millers National Insurance Company of Chicago, Ill., hereinafter called the defendant. The suit was instituted on an insurance policy for $5,000 principal and damages for failing to pay the insured within sixty days after notice of the fire had been given. The jury returned a verdict in favor of the plaintiff for $5,000, plus $500 for penalties and $500 for attorney's fees. The defendant filed a motion for new trial on the statutory grounds and by amendment added 3 special grounds. The court denied the motion and the case is here for review on this judgment.
Millers National Insurance Company-Home Office-Chicago, Ill. Renewal of No.
Fire and Lightning $5,000 1.00 50.00 Total Premium $58.00
"In consideration of the provisions and stipulations herein or added hereto and of the premium above specified this company, for the term of one year from October 9, 1956, at noon (Standard Time) to October 9, 1957, at noon (Standard Time) at location of property involved, to an amount not exceeding the amount(s) above specified, does insure Shelly T. Waters and legal representatives, to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss, without allowance for. any increased cost of repair or reconstruction by reason of any ordinance or law regulating construction or repair, and without compensation for loss resulting from interruption of business or manufacture, nor in any event for more than the interest of the insured, against all direct loss by fire, lightning and by removal from premises endangered by the perils insured against in this policy, except as hereinafter provided, to the property described hereinafter while located or contained as described in this policy, or pro rata for five days at each proper place to which any of the property shall necessarily be removed for preservation from the perils insured against in this policy, but not elsewhere. Item No. 1. Amount fire or fire extended coverage, or other peril--$5,000. Description and location of property covered. Show construction, type of roof and occupancy of building(s) covered or containing the property covered. If occupied as a dwelling, state number of families. On the one story frame metal roof dwelling occupied by tenant situated E/S Settlement Road leading from Birds Bridge to Brooklet, Georgia, located about 14 miles S/E of Statesboro, Georgia, in Bulloch County. Subject to Bureau Form No. (s). 330-G2 2/56/25 (Ann. Renewal) herein. The safe flue warranty in form does apply.
"Mortgage clause: Subject to the provisions of the mortgage clause attached hereto, loss, if any, on building items, shall be payable to Sea Island Bank, Statesboro, Georgia. There is no liability against the assured under the charter of said company in addition to the premium stated herein. Assignment of this policy shall not be valid except with the written consent of this company. This policy is made and accepted subject to the foregoing provisions and stipulations and those hereinafter stated, which are hereby made a part of this policy, together with such other provisions, stipulations and agreements as may be added hereto, as provided in this policy. Agency at Statesboro, Georgia.
"s/ C. A. Sorrier, Agent
Sorrier Insurance Agency-Agents
"Countersignature date October 9, 1956.
"This entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto."
The evidence shows substantially that at the time the plaintiff had applied to the insurance company for insurance he stated that the house was from fifteen to twenty years old and had a metal roof; that some time after the policy was written a metal roof was put on a portion of the house that formerly had a shingle roof; that the plaintiff himself testified that he told the insurance agent that the house was twenty or twenty-five years old and described the building; that he knew that part of the house was older than that. There was testimony to the effect that the plaintiff first asked for $7,500 worth of insurance and Mr. Sorrier, the agent of the insurance company, would only write a policy for $5,000. There was testimony to the effect that some of the neighbors did not think that the house was worth $6,000. There was other evidence to the effect that the house was worth as much as $7,000. There was evidence to show that the insured gave sufficient notice to the insurance company of the loss by fire.
Mr. Sorrier, the agent who wrote the policy, testified that the insurance was not paid to the insured because the house was over-insured. This witness testified: "I don't know whether Mr. Waters stated that the house was in good condition or not, I don't remember asking him that, but I would assume that it was insurable or I wouldn't have written it."
Mr. Ralph Bacon, a practicing attorney, testified that $500 or $600 would be a reasonable fee to charge the plaintiff in a case of this type.
This court held in Firemen's Ins. Co. v. Parmer, 51 Ga. App. 916
(181 S. E. 880) as follows: "For the purpose of this decision it may be assumed that the insured actually represented to the insurer that the 'actual cost price' of the property insured was $290, and that in fact the 'actual cost price' was not in excess of $220. The insurance company contends that this was such a material misrepresentation as avoided the policy, and that therefore the verdict was contrary to law . . . Representations of actual cost price in a policy like the one in the present case must necessarily affect only the amount of insurance to be issued, that is, the limit of the insurer's liability; and where the policy is not a valued policy, but the loss is to be determined by the actual value of the property at the time of the fire, we can not see how the representation as to the actual cost price, if false, would be such a material misrepresentation as to affect the nature, character, or extent of the risk." (Italics ours.) In Metropolitan Life Ins. Co. v. Cooper, 54 Ga. App. 192
, 196 (187 S. E. 167) this court said: "While there is evidence very strongly indicating that the misrepresentations made by the insured in the application were as to matters material to the risk, and therefore voided the policy, the evidence when taken in its entirety does not demand this inference as a matter of law. The materiality of such misrepresentations is a question of fact for a jury." In Touchton v. Mock, 91 Ga. App. 689
, 691 (86 S. E. 2d 699) the same principle was expressed in this language: "Jurors are not absolutely bound to accept as correct the opinions or estimates of witnesses as to the value of property, though uncontradicted by other testimony, but have the right to consider the nature of the property involved, together with any other fact or circumstance properly within their knowledge, throwing light upon the question, and they may, by their verdict, fix either a lower or higher value upon the property than that stated in the opinions or estimates of the witnesses."
As to whether or not attorney's fees should be allowed, see Guaranty Life Ins. Co. v. Brown, 92 Ga. App. 847
, 850 (90 S. E. 2d 97) wherein this court said: "The defendant argues that the penalty and attorney's fees should be written off since there was no evidence to show that the refusal of the insurance company to pay the claim was in bad faith or frivolous. It is usually a question for the jury to determine whether the insurance company, in refusing to pay, acted in bad faith and subjected itself to the penalty and attorney's fees provided for by Code 56-706. See Liberty Mutual Ins. Co. v. Atlantic Coast Line R. Co., 66 Ga. App. 826
, 834 (19 S. E. 2d 377), and cases cited; National Life & Accident Ins. Co. v. Moore, 86 Ga. App. 618
, 626 (72 S. E. 2d 141). In the case last cited the insurance company made inconsistent defenses to the action against it on an insurance policy. In the case at bar the insurance company filed a plea that the policy was obtained by fraud on the part of the plaintiff. There was no evidence introduced on the trial of the case to substantiate this, and therefore the jury was authorized to find for the plaintiff on the issue raised by the pleadings that the insurance company's failure to pay the loss was in 'bad faith'. Accordingly, there is no merit in the motion for new trial based on the general grounds only." See also Cimarron Ins. Co. v. Pace, 212 Ga. 427
, 430 (93 S. E. 2d 593) wherein the Supreme Court said: "Bad faith within the meaning of the statute is any frivolous or unfounded refusal in law or in fact to pay a loss according to the insurance contract after legal demand. Metropolitan Life Ins. Co. v. Lovett, 50 Ga. App. 763
, 768 (179 S. E. 253). According to the allegations of the petition, the requirements imposed on the petitioners by Code 56-706 were strictly complied with; and the allegations of the petition respecting the defendant company's bad faith in refusing to pay the insured's loss within sixty days after demand therefor were amply sufficient to carry the question of damages and attorneys' fees to the jury for determination. See Rogers v. American Nat. Ins. Co., 145 Ga. 570 (3)
(89 S. E. 700); Metropolitan Life Ins. Co. v. Lathan, 77 Ga. App. 6
, 9 (47 S. E. 2d 596)."
Counsel for the defendant call our attention to the fact that the plaintiff went to the insurance agent and first asked that the property be covered for $7,500, whereupon the agent Sorrier refused to issue a policy for that amount, but did issue a policy for $5,000. There was evidence that portions of the house were over fifty years old. This does not necessarily lessen the value of the house. There is conflicting testimony as to the value of the house at the time of the fire, but the jury resolved this issue in favor of the plaintiff receiving the face value of the policy plus other benefits as described hereinabove. The facts in Life & Casualty Ins. Co. of Tenn. v. Freemon, 80 Ga. App. 443 (56 S. E. 2d 303) are not applicable to the facts of the instant case. The contentions of the defendant as to the general grounds are without merit.
2. Special ground 1 contends that the defendant should have a new trial because one of the jurors was disqualified for the reason that he was related to a stockholder in the Sea Island Bank, Statesboro, Georgia, and because this fact was not known to counsel for the defendant at the time of the trial. This point was very ably discussed in Evans v. Grier, 29 Ga. App. 426
(115 S. E. 921). In headnote 3 of that case this court said: "Before the trial judge is authorized to grant a new trial on newly discovered evidence, it must appear that the movant or his counsel could not, by ordinary diligence before the trial, have discovered such evidence offered as newly discovered. Since a motion for a new trial upon the ground of newly discovered evidence, and the showing made in support of such motion, are addressed to the sound discretion of the trial judge . . . a bare recital in the affidavit of the movant or his counsel that the newly discovered evidence offered 'could not have been discovered by the exercise of ordinary care' is but a mere conclusion, without a disclosure of the facts upon which such conclusion is based, and the trial judge is not bound to conclude that the affiant had exercised the required diligence. Taylor v. State, 132 Ga. 235
, 237 (63 S. E. 1116); Patterson v. Collier, 77 Ga. 292
(3 S. E. 119)." See also Holder v. Farmers Exchange Bank of Stillmore, 30 Ga. App. 400 (5)
(118 S. E. 467) and Jennings v. Autry, 94 Ga. App. 344
(94 S. E. 2d 629). In Bean v. Barron, 176 Ga. 285 (1)
(168 S. E. 259), the Supreme Court said: "When parties are furnished with a list of the jury, it is their duty, if they know that any of the jurors are disqualified, to call attention to the same, or the disqualification will be held to have been waived. If they have reasonable grounds to suspect that any of the jurors are disqualified, it is their duty to call attention to the fact, so that due inquiry may be made of the panel."
The defendant had some time until the trial to get a list of the stockholders of the bank and to have the court purge the jury of the stockholders of the bank or any relatives of the stockholders. There was no objection to the juror in question at the time the juror was qualified or until the time of the verdict. It appears in the record that when the court inquired of the jurors with reference to the relationship of the stockholders of the bank, one juror was disqualified and relieved of duty, and by agreement of counsel, the case proceeded to trial with eleven jurors and it was not until after the verdict was rendered against the defendant that counsel for the defendant objected to one juror as being related to a stockholder. This objection should have been made beforehand or else such objection was waived. This ground is without merit.
3. Special ground 2 assigns error because the defendant, by special demurrer, moved to strike a certain paragraph numbered 9, marked Exhibit C, from the petition; that it was agreed that the demurrer was good and counsel for the plaintiff stated that he would strike this exhibit; that instead of removing the exhibit it was allowed to go out with the jury as part of the pleadings in the case, which was harmful to the defendant. The plaintiff struck paragraph 9 in its entirety and rewrote the paragraph. This was evidently agreeable to counsel for the defendant because there was no further complaint made concerning this paragraph. This contention is without merit.
4. Special ground 3 assigns error because it is contended that the court erred in making a statement in the presence of the jury while admitting in evidence a purported affidavit; that when the affidavit was offered in evidence by counsel for the plaintiff, counsel for the defendant objected to the introducing of such affidavit except for the purpose of admitting it to impeach the witness Roy Wilson. Inc. admitting such affidavit, the trial judge used this language: "I will let it go in for the sole purpose of impeaching the witness, Roy Wilson, and for no other purpose." It is contended that the statement of the judge implied that the witness Wilson was impeached by the introduction of the affidavit; moreover, Mr. Lanier, counsel for the defendant, stated in this connection: "I have no objection to his introducing it for the purpose of undertaking to impeach a witness . . . Nevertheless, we have no objections to it being introduced for whatever consideration the jury might give it." This ground is without merit.
The trial court did not commit reversible error in any of the rulings of which complaint is made by counsel for the defendant.
Judgment affirmed. Townsend and Carlisle, JJ., concur.