Opinion
40571.
DECIDED MARCH 11, 1964. REHEARING DENIED MARCH 30, 1964.
Action on insurance policy. Fulton Civil Court. Before Judge Camp.
Scott, Scroggins, Cash Crim, Frank W. Scroggins, for plaintiff in error.
Peek, Whaley Blackburn, J. Corbett Peek, Jr., contra.
1. The plaintiff's testimony, that the defendant insurer made an absolute refusal to pay him anything, could have been a statement of fact or an opinion, but the defendant, having neither objected to its admissibility when offered nor sought to elicit by cross examination the facts upon which it was based, cannot raise the issue of the competency of the evidence by his motion for nonsuit.
2. The lack of proof that the defendant insurer's purported absolute refusal to pay occurred within the time provided in the policy for filing of proof of loss did not render the plaintiff's case subject to nonsuit since his case as laid did not so allege.
DECIDED MARCH 11, 1964 — REHEARING DENIED MARCH 30, 1964.
Joel H. Gazaway brought an action against Secured Insurance Company to recover damages for alleged losses under the theft loss clause of an automobile insurance policy. The petition alleged substantially as follows: That the plaintiff had paid in full the premium on the policy, a copy of which was attached as an exhibit to the petition; that on July 14, 1961, at about 11:30 p. m., the plaintiff's insured automobile was stolen; that on July 15, 1961, the plaintiff notified the Atlanta Police Department and the defendant insurer of the theft; that on July 24, 1961, the plaintiff was notified by the Atlanta Police Department that his automobile had been recovered; that, upon inspecting the automobile at the garage where it was stored, the plaintiff found that extensive alleged damage had been done to it, reducing its fair market value from $900 to $100; that on July 26, 1961, the plaintiff notified the defendant of the damage and an agent of the defendant personally interviewed him and obtained a written report from him; that although the plaintiff made demand upon the defendant insurer for payment of the loss, the defendant made an absolute refusal to pay; that the plaintiff made a continuing demand on the defendant for payment of the loss and repeatedly agreed to cooperate in every way with the defendant and to furnish it with any information that it desired; that the defendant continued its refusal and after more than 60 days had elapsed from the time of his demand, the plaintiff filed suit against the defendant at the November, 1961 term of the Civil Court of Fulton County; that on March 7, 1963, the plaintiff voluntarily dismissed the suit and now, within 6 months of said dismissal, and after first paying all costs in the case, brings this suit; that the plaintiff is entitled to damages for loss of use of the automobile, for bad faith penalty and for attorney's fees. The policy contained the customary condition precedent to the bringing of an action against the company, i.e., the insured's full compliance with all the policy's terms, which included submission of a written notice of loss and a signed and sworn proof of loss as soon as practicable and a lapse of 30 days after proof of loss or claim is filed with the company. The defendant filed its answer admitting jurisdiction, its issuance of the policy to the plaintiff and receipt of the premium, and denying all other material allegations of the petition.
At the trial of the case before a jury, the plaintiff testified in part as follows: that he had parked the automobile in his driveway right off the street on the night of July 14, 1961; that immediately upon discovering the automobile's absence the next morning he notified the police department and that he called the defendant company around 9 a. m. when its office was opened; that, meanwhile, a policeman came out and got his tag number and the make and description of the automobile and later on that day an insurance representative came out and the plaintiff gave him the same information; that on or about July 26, 1961, the plaintiff, having been notified by mail by the Atlanta Police Department of the whereabouts of his automobile, called the defendant company from the garage and notified them of the condition of the automobile; that the plaintiff told the defendant that the automobile wouldn't run and that he didn't have the money for a tow charge, to which he received the reply that "there's nothing I can do about it"; that on the following morning the plaintiff gave the defendant a statement, "a missing car, and he said all I would have to do was give him a statement and I wrote it out"; that he had never loaned the automobile to anyone; that two or three weeks after the alleged theft but before the plaintiff was notified that the automobile had been found (which was about 10 days after the theft) some detectives brought two colored boys, whom the plaintiff did not know, into the place where the plaintiff worked and that they had said that they knew the plaintiff and that he had loaned them the automobile, both of which facts he denied; that he had never written the defendant insurer anything whatsoever concerning the alleged loss; that the defendant through its agent made an absolute refusal to pay the plaintiff anything.
After the plaintiff closed his case, the defendant moved for a nonsuit on the ground that the plaintiff had not offered any evidence showing that he had complied with the condition precedent of submitting sworn written proofs of loss to the defendant. The court granted the motion, to which judgment the plaintiff excepts.
1. Our courts have held that an absolute refusal to pay waives compliance with requirements prescribed by the insurer for proofs of loss. Government Employees Ins. Co. v. Hardin, 108 Ga. App. 230, 234 ( 132 S.E.2d 513) and cases cited. The plaintiff alleged and testified that the defendant made an absolute refusal to pay him anything. The nature of this testimony is such that it might be an opinion of the plaintiff, based upon his conclusion from what the defendant's agent told him combined with the other facts to which he testified, or, on the other hand, it might have been a statement of fact, relating only what the defendant's agent had actually told him. It is true that "[t]he opinion of a witness is not admissible as evidence when all the facts and circumstances are capable of being clearly detailed and described, so that the jurors may be able readily to form their own conclusion therefrom." Harris v. State, 188 Ga. 745 (1) ( 4 S.E.2d 651); and see cases under Code § 38-1708, catchwords "Conclusion of witness" and "Jury," and that opinions as to the ultimate question in the case are without probative value. Scott v. Gibson, 194 Ga. 503 ( 22 S.E.2d 51). It has also been held, however, that "[w]here a witness testifies to a conclusion of fact which could be within his knowledge and such testimony is admitted without objection, it cannot be attacked on review as being incompetent or insufficient." Turner v. Hardy, 198 Ga. 626, 642 ( 32 S.E.2d 483) and cases cited; Bull Son v. Carpenter, 32 Ga. App. 637, 639 ( 124 S.E. 381). "Where a witness testifies to a fact, the presumption is, in the absence of anything to the contrary, that he is testifying from his own knowledge." Shaw v. Jones, 133 Ga. 446 (3) ( 66 S.E. 240); Daniel v. Weeks, 217 Ga. 388, 398 ( 122 S.E.2d 564). A motion for nonsuit is not the equivalent of an objection to the admissibility of the evidence when it is offered, nor is it the equivalent of a motion to exclude such testimony. Irvin v. Locke, 200 Ga. 675, 683 ( 38 S.E.2d 289). "A nonsuit shall not be granted merely because the court would not allow a verdict for plaintiff to stand; . . ." Code § 110-310. It has been noted that "[s]uch a statement could have been tested on cross examination, and, in the absence of any modification or explanation on further examination, or any exception after timely objection to such evidence, can not be disregarded." Bailey v. Newberry, 52 Ga. App. 693, 697 ( 184 S.E. 357). Accordingly, the plaintiff's testimony, not having been objected to on the grounds of being opinionative, or not having been based upon facts to support the conclusion, was sufficient evidence to withstand the motion for nonsuit, with its weight and credit to be determined by the jury.
2. Where the insured is to rely, as he does in the case at bar, upon an absolute refusal to pay as a waiver, he must allege and prove that the refusal, or what amounted to a refusal, occurred within the time provided for filing a proof of loss. Reserve Ins. Co. v. Campbell, 107 Ga. App. 311 ( 130 S.E.2d 236). The petition does not specifically allege that the defendant's absolute refusal occurred within the time provided for filing a proof of loss under the policy, i.e., "as soon as practicable"; however, "the office of such a motion [for nonsuit] is not to test the legal sufficiency of a petition," Reeves v. Jackson, 113 Ga. 182, 184 ( 38 S.E. 314), McCandless v. Conley, 115 Ga. 48 ( 41 S.E. 256), or to invoke a ruling as to whether the petition states a cause of action, Evans v. Josephine Mills, 119 Ga. 448 ( 46 S.E. 674), but only brings up the question whether the plaintiff proved his case as laid, without establishing such additional facts as disprove his right to recover. Whited v. Atlanta Coca-Cola Bottling Co., 88 Ga. App. 241, 248 ( 76 S.E.2d 408). If the plaintiff proves his case as laid, therefore, he is entitled to prevail as against a nonsuit, though it by no means follows from this that he is always entitled to recover on the facts as laid. Kelly v. Strouse, 116 Ga. 872, 883 (4) ( 43 S.E. 280); Gray v. Schlapp, 92 Ga. App. 261 (1) ( 88 S.E.2d 536) and citations; Yarbrough v. Cantex Mfg. Co., 97 Ga. App. 438, 442 ( 103 S.E.2d 138).
Accordingly, the judgment of the trial court granting the motion for nonsuit was error and must be reversed.
Judgment reversed. Frankum and Pannell, JJ., concur.