Reserve Life Ins. Co. v. Peavy

95 Ga. App. 195 (1957)

97 S.E.2d 542

RESERVE LIFE INSURANCE CO. v. PEAVY.

36548.

Court of Appeals of Georgia.

Decided February 6, 1957.

Rehearing Denied February 22, 1957.

Martin, Snow & Grant, for plaintiff in error.

Adams, O'Neal & Steele, H. T. O'Neal, Jr., Robert E. Steele, Jr., contra.

*198 QUILLIAN, J.

1. If negotiations are pending between an insurance company and an insured as to the canceling of a policy, but the minds of the parties have not met and a cancellation has not become actually effective at the time a claim arises, the insurance company cannot use the cancellation of the policy as a defense. Home Ins. Co. of New York v. Chattahoochee Lumber Co., 126 Ga. 334 (55 S. E. 11).

2. For a notice to an insured to be the basis of a cancellation of an insurance policy it must positively and unequivocally indicate ". . . to the insured that it is the intention of the company that the policy shall cease to be binding as such upon the expiration of the stipulated number of days from the time when its intention is made known to the insured. The notice *196 is not sufficient, however, if it is equivocal, or merely states a desire or intention to cancel." 29 Am. Jur. 263, § 283; Chambers v. Washington National Ins. Co., 66 Ga. App. 509, 511 (17 S. E. 2d 899).

3. This being an appeal from the first grant of a motion for a new trial, the only question to be determined is whether the trial judge abused his discretion. Seaboard Air-Line Ry. v. Reid, 6 Ga. App. 18 (63 S. E. 1130); Sumner v. Sumner, 186 Ga. 390 (197 S. E. 833). In the present case there was sufficient evidence that the plaintiff, while the policy was of force, became ill and was hospitalized; the evidence did not require the finding that the defendant positively and unequivocally canceled the policy prior to the time the plaintiff's claim arose.

4. The trial judge did not err in granting the motion for a new trial.

Judgment affirmed. Felton, C. J., and Nichols, J., concur.