Opinion
39006.
DECIDED SEPTEMBER 28, 1961.
Complaint. Colquitt Superior Court. Before Judge Lilly.
Maxwell A. Hines, Peter W. Walton, for plaintiff in error.
Emory M. Hiers, Whelchel Whelchel, Hoyt H. Whelchel, Jr., Wm. H. Riddlespurger, contra.
1. A petition against an insurance company seeking recovery of the amount of a judgment rendered against an insured on a policy of automobile liability insurance is not subject to general demurrer where it alleges that the company issued a described policy of liability insurance to a codefendant and that such policy was in full force and effect at the time of the trial, although the plaintiff further alleges contradictory statements by the codefendant showing that since the collision and injuries she had both admitted and denied that she was the owner of the vehicle in question.
2. The rights of one injured in an automobile collision against the insurer of the party whose negligence caused the injury arise immediately upon the happening of the event, subject to the terms and conditions of the policy, and cannot thereafter be destroyed by an attempted mutual rescission of the policy between the insurer and the insured.
3. Prior admissions of a party-opponent in an action, both those contained in the answer to a previous suit and by oral and written extra-judicial statements, as well as implied admissions clearly shown by a consistent course of conduct, may constitute substantive evidence against such party although not against interest at the time when made, and their effect on the trial of the case is not limited to impeachment purposes only.
4. The evidence in this case clearly showed that if the codefendant Mrs. Miller was the owner of the automobile which she had purchased and on which she took out the policy of liability insurance in question at the time of the collision, her employee who was driving the vehicle was doing so with her knowledge and consent. The only issue in this case was ownership, and the evidence demanded a finding that if she was in fact the owner the driver was operating the vehicle with her knowledge and consent and was therefore an insured under the terms of the policy.
5. Since an insurer in a contract of automobile liability insurance is liable for all sums which the insured shall become legally obligated to pay, which includes interest on a judgment rendered against such insured, and since the petition set out the principal amount of such judgment and prayed for interest thereon at the legal rate, there was no error in including the amount of such interest in the judgment and in overruling a later motion to modify the judgment so as to exclude the interest.
DECIDED SEPTEMBER 28, 1961.
Alice Kendall brought an action in the Superior Court of Colquitt County against State Farm Mutual Automobile Insurance Co. as the principal defendant, alleging that such defendant was indebted to her in the sum of $7,500. Roy Guest and Thelma D. Miller were also named defendants in the action, although no relief was sought against them and the latter defendant was not made a party defendant to the appeal. The petition alleged the following facts: the insurance company issued to Mrs. Miller a policy of liability insurance in which the insured was defined as the named insured and any person using the automobile provided the actual use was with the permission of such named insured. Roy Guest, while operating the automobile, had a collision during the policy term with an automobile in which Mrs. Kendall was a passenger. Mrs. Kendall filed an action for damages against Guest and Mrs. Miller in the City Court of Colquitt County which resulted in a verdict against the driver Guest only in the amount of $7,500, which judgment has not been paid, and Guest is insolvent.
The petition further alleges facts showing that Mrs. Miller made application for the insurance and stated therein that she was the owner of the Oldsmobile in question, and that immediately after the collision she gave written statements to the effect that she was the sole owner, subject to a lien in favor of the bank; that Guest worked for her and her husband, that she frequently permitted him to use the car for his own business and pleasure and on the night of the collision had permitted him to use it but requested that he take it by the garage first to be checked. Her answer filed in the damage suit was to the same effect except that she stated that on the night in question she had permitted Guest to take the automobile for the purpose of taking it by the garage, and not to use for his personal business, and that at the time of the collision he had deviated from his, authority in this respect. Statements of Guest were also to the effect that Mrs. Miller owned the automobile and he was using it with her permission. At the time when the damage suit was ripe for trial the insurance company notified Mrs. Miller that her liability thereunder might exceed the coverage of the policy. Thereafter she employed counsel other than her original counsel who had been provided by the insurance company, and her individual counsel filed on her behalf an answer striking the statements above set out and alleged in lieu thereof that Mrs. Miller was not the owner of the vehicle; that Guest, her employee, had previously owned a Buick inherited from his father and had borrowed from Mrs. Miller funds to pay his father's burial expenses and that to secure the loan Mrs. Miller required him to put title in her name; that thereafter he wished to purchase an Oldsmobile and she handled this transaction for him, trading in the Buick for the Oldsmobile, which was purchased in her name, and giving her note to the Moultrie National Bank in exchange for the balance of the purchase money, and that weekly payments to her on the Oldsmobile were retained each week out of Guest's wages. Mrs. Miller and Guest both gave sworn statements and testimony in accordance with this last version of the transaction.
The petition further alleged that Mrs. Miller and the defendant insurance company wrongfully and collusively entered into an agreement to rescind the policy of insurance prior to the verdict in the damage suit, upon repayment to her of her premiums, and that as further evidence of the collusive action the insurance company, which had previously made payment by check jointly to Mrs. Miller and the bank of the sum claimed under her policy of collision insurance on the automobile and also had made payment to another person injured in the collision in receipt for a covenant not to sue, made no effort to collect these sums back from Mrs. Miller.
General and special demurrers to the petition were overruled. The trial resulted in a verdict in favor of the plaintiff for the amount of her judgment against Guest plus interest thereon. The defendant insurance company excepts to the overruling of its demurrers, its motion for a new trial as amended, and its motion for judgment notwithstanding the verdict.
1. The general demurrer is based on the proposition that the petition, by setting out contradictory statements of the insured, alleges both that she was and that she was not the owner of the vehicle in question, and that, these allegations being inconsistent and repugnant to each other, the conclusion must be reached that she was not the owner and accordingly that there was no insurance coverage, citing Adams v. Johnson, 182 Ga. 478, 480 ( 185 S.E. 805). The plaintiff, however, alleges the contradictory statements of Mrs. Miller simply for the purpose of building a base from which to destroy the contract rescission, without adopting these statements as being true, and further alleges that the policy was in full force and effect at the time of the collision. The petitioner, by alleging inconsistent positions on the part of the defendant, does not herself adopt such positions, and the allegations are therefore not subject to the criticism that they are self-contradictory so far as the plaintiff is concerned. The general demurrer was properly overruled.
2. "Rights against insurer arise immediately upon the happening of the accident and cannot be destroyed by attempted subsequent cancellation, release or compromise by insured and insurer." Blashfield, Cyclopedia of Automobile Law and Practice, Vol. 6, § 4071, p. 111. This point was raised in Indemnity Co. of America v. Pitts, (Tex.Civ.App.) 58 S.W.2d 53, 54, where it was held: "Secondly, that the petition shows that the policy in question has been canceled by agreement made between Kakisaki [the insured] and the company. . . It appears from the petition that at the time the agreement for cancellation of the policy was made between Kakisaki and the Indemnity Company, the accident in question had already occurred, and the liability which the Indemnity Company was bound to assume subject to the terms and conditions of the policy, had already become attached . . . [The plaintiff's] rights against the company, subject to the terms and conditions of the policy, accrued the moment the liability of Kakisaki for the personal injuries suffered by her arose." The petition here shows that the company's attempt to cancel the policy, and Mrs. Miller's acceptance and cashing of the returned premium check, occurred after the collision and after the plaintiff's action had been filed and was ready for trial. It follows that there could be no rescission by mutual consent in such manner as to affect the rights of Mrs. Kendall, and this regardless of whether or not the insurance company was guilty of actual fraud and collusion with Mrs. Kendall in attempting such rescission. This being the case, the allegations of the petition regarding such collusion are immaterial and any error in overruling the special demurrers, on the ground that the allegation is a conclusion of the pleader without facts to support it, would not affect the plaintiff's cause of action and consequently would not be harmful to the defendant. There was no special demurrer to these allegations on grounds that the allegation was immaterial and prejudicial to the defendant.
3. The motion for a judgment notwithstanding the verdict and the general grounds of the motion for a new trial insist that, in view of the sworn statements of Guest, and the sworn statements and testimony of Mrs. Miller, Guest and not she was the owner of the automobile, there is no evidence to support a verdict against the insurance company for the reason that if Mrs. Miller was not the owner there was no coverage under the policy. This is true only if the prior admissions of the parties, including the proved actions of Mrs. Miller in making application for the policies in which she represented herself as the owner, in purchasing the Oldsmobile and in giving the note to the bank to finance its purchase can be considered only to impeach the witness, but it is not true if such admissions are sufficient within themselves to sustain the verdict. Admissions contained in an answer filed by the party in another case are competent evidence against him. Printup v. Patton Jackson, 91 Ga. 422 (1) ( 18 S.E. 311). Also, oral admissions by a party are competent evidence against him. Sconyers v. Pierce, 82 Ga. App. 436 ( 61 S.E.2d 439). Where a party to the action is involved, in contradistinction to a witness who is not a party, the admissions need not be shown to be against interest when made in order to render them admissible. Green, Georgia Law of Evidence, Admissions of a Party-Opponent, Ch. XVII, p. 518 et seq. Nor should they be limited in effect merely to discrediting the testimony of the opposite party, but they may be considered as having a substantive probative value. 31 C.J.S., Evidence, § 273. Since Mrs. Miller's sworn testimony in this case was in conflict with her previous admissions and course of conduct, the jury, if it believed such admissions and found that she was in fact the owner of the Oldsmobile which she had purchased, necessarily disbelieved her testimony in this case, from which a finding would be demanded that she swore wilfully and knowingly falsely herein. It follows that they would have had to disregard all of the testimony of Mrs. Miller not corroborated by other evidence. Code § 38-1806. With this testimony out of the case there is nothing to show that Guest was purchasing the automobile, or that weekly payments for it were withheld from his wages, or that he had any interest in it whatever. The plaintiff was accordingly entitled to recover under the proved prior admissions and actions of Mrs. Miller and Guest. The evidence on the trial of the damage suit was not introduced in this case, and since that verdict could have been arrived at on the theory that Mrs. Miller, although she owned the automobile, had merely lent it to Guest and was not guilty of negligence proximately causing the plaintiff's injuries, that judgment is not conclusive of any issue in this case relative to the ownership of the vehicle. The motion for judgment notwithstanding the verdict and the general grounds of the motion for a new trial are without merit.
4. The two special grounds of the amendment to the motion for a new trial contend that the trial court erred in not charging, both generally and as to the contentions of the parties, in such manner as to instruct the jury that the insurance company would not be liable for the amount of the judgment in the prior damage suit against Guest unless Guest was driving the vehicle with the permission of Mrs. Miller. If Mrs. Miller did not own the Oldsmobile the insurance company would not be liable in any amount, and if she did own the car the circumstantial evidence in the case indicated that the automobile was in his possession and customarily driven by him for his own convenience. In the absence of any evidence to the contrary, a finding would have been demanded, if the jury found Mrs. Miller the owner of the car, that Guest was driving it with her knowledge, consent and approval. Accordingly these grounds show no reversible error.
5. The motion to modify the judgment was properly overruled for the reason stated in the headnote.
The trial court did not err in any of the rulings complained of.
Judgment affirmed. Frankum and Jordan, JJ., concur.