Cotton States Mutual Insurance v. Proudfoot

181 S.E.2d 305, 123 Ga. App. 397, 1971 Ga. App. LEXIS 1240

• Court: Court of Appeals of Georgia
• Decided: January 29, 1971
• Docket: 45631
• Status: Published

Opinions

Evans, Judge.

Stewart Proudfoot, as plaintiff, sued Ethel L. Salanga, as defendant, in the Superior Court of Glynn County, because of personal injuries alleged to have been incurred as the result of an automobile collision. The defendant was insured by Cotton States Mutual Insurance Company, and said insurer conducted the defense through attorneys that it employed for that purpose. Verdict and judgment were rendered for the plaintiff, after which plaintiff had garnishment served on Cotton States Mutual Insurance Company as to the policy of insurance issued by it to the defendant. Subsequently the insurer filed a motion for summary judgment, alleging that the insured had failed to co-operate with it by failing to attend the trial of the main case. There were only two affidavits submitted in evidence on the motion for summary judgment, one being the affidavit of the attorney for the insurer and the other being the affidavit by the attorney for the plaintiff.

1. It is undisputed that the insured did not appear at the trial of the suit brought against her by the plaintiff. The affidavit of the insurer’s attorney recites that she was in California; that he talked with her on the telephone and sent her the money for transportation; and that she promised to appear. But this was not admissible evidence to show that he actually talked with the defendant as he did not claim to have recognized her voice or to have ever known her. Stewart v. Fisher, 18 Ga. App. 519 (3) (89 SE 1052); Myers v. Brown, 74 Ga. App. 534 (40 SE2d 391). Nor was he competent to testify to what happened in California as to her receipt of funds for transportation.

2. Affidavits in support of motion for summary judgment must be made on personal knowledge as to admissible evidence and must show that the affiant is competent to testify to the matter therein set forth. § 56 CPA (Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238; Code Ann. §81A-156 (e)); Holland v. Sanfax Corp., 106 Ga. App. 1, 5 (126 SE2d 442).

3. No showing was made by the insurer as to the reason for the insured’s failure to attend. The burden was on the movant for summary judgment to make this showing and to convince the trial court that her failure to appear and co-operate was a wilful and intentional refusal to co-operate. National Union Fire Ins. Co. v. Carmical, 99 Ga. App. 98, 104 (107 SE2d 700); State Farm Mut. Auto Ins. Co. v. Wendler, 117 Ga. App. 227, 231 (160 SE2d 256).

4. It was shown that the case had been continued prior to the time on which the final trial was held, but when counsel for the insurer learned that the insured was not present, the record does not show that he moved for further continuance in order to serve a "reservation of rights” notice upon the defendant, but contented himself with advising the trial court that he was reserving his rights to contend the insurance was not effective because of her failure to co-operate. The trial court, however, was not the agent of the insured person, and when an insurance company elects to participate in a trial by defending the action without giving such "reservation of rights” notice, then it is estopped to later contend the insurance is not effective. See Jones v. Ga. Cas. &c. Co., 89 Ga. App. 181, 185 (78 SE2d 861); State Farm Mut. &c. Ins. Co. v. Anderson, 104 Ga. App. 815, 818 (123 SE2d 191); s.c., 107 Ga. App. 348 (2) (130 SE2d 144).

5. In motions for summary judgment "the party opposing the motion is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists and the trial court must give that party the benefit of all favorable inferences that may be drawn from the evidence.” Holland v. Sanfax Corp., 106 Ga. App. 1, 5, supra.

6. Ordinarily, in the trial of a civil action the attorney who moves for a continuance because of the absence of his client has the burden of showing that he cannot go safely to trial without the presence of the party. Cauthen v. Barnesville Savings Bank, 69 Ga. 767 (1); Mosley v. Bridges, 65 Ga. App. 64 (15 SE2d 260). Here, however, the insurance company had a contract with the insured by which she agreed to be present. But no motion for further continuance was made, and no showing has been made as to why the party was absent. Illness or other good excuse might have prevented her appearance. Be that as it may, the burden to show she "wilfully and intentionally refused to appear” was upon the movant.

Argued September 17, 1970 Decided January 29, 1971 Rehearing denied March 2, 1971. Fendig, Dickey, Fendig & Whelchel, J. Thomas Whelchel, for appellant. Nightingale, Liles & Dennard, B. N. Nightingale, Thomas E. Dennard, Jr., for appellee.

The judge of the lower court correctly overruled the motion for summary judgment in this case.

Judgment affirmed.

Bell, C. J., Jordan, P. J., Pannell and Quillian, JJ., concur. Hall, P. J., Eberhardt, Deen and Whitman, JJ., dissent.