defendant neither offered evidence at trial nor disputed liability
How later courts described this case
- defendant neither offered evidence at trial nor disputed liability
Written by the judges who cited it.
The opinion
Evans, Judge,
concurring specially. I concur in the judgment, and generally with the majority opinion, but not with all that is said therein. I, therefore, concur specially and add the following:
Code § 20-1404 presents an exception whereby expenses of litigation may be allowed, although they "are not generally allowed.” The exception is when it can be shown that defendant has acted in bad faith, or has been stubbornly litigious, or has caused plaintiff unnecessary trouble and expense.
In Traders Ins. Co. v. Mann, 118 Ga. 381, 384 ( 45 SE 426 ), it was explained that the tendency is to limit recovery of attorney’s fees under this section to ex delicto actions. But ex contractu actions also may be included provided the defendant "has acted in bad faith” which means, in the transaction which gives rise to the cause of action, and not to the way and manner in which the defendant becomes *527 offensive and obstreperous after he has been hauled into court. See Mendel v. Leader, 136 Ga. 442 ( 71 SE 753 ); Felder v. Paulk, 165 Ga. 135 (6) ( 139 SE 873 ); O’Neal v. Spivey, 167 Ga. 176 (3) ( 145 SE 71 ); B-X Corp. v. Jeter, 210 Ga. 250 ( 78 SE2d 790 ); Bankers Health &c. Ins. Co. v. Plumer, 67 Ga. App. 720, 725 ( 21 SE2d 515 ).
Thus, it is more difficult to prove bad faith in ex contractu actions than in ex delicto actions. It is not too difficult to prove that a motorist, who drives his automobile into yours, while he is speeding and on the wrong side of the road, acts in bad faith. It was held long ago that damages in tort actions may be increased by expenses of litigation. See Selma, R. &c. R. Co. v. Fleming, 48 Ga. 514 (1); Juchter v. Boehm, Bendheim & Co., 67 Ga. 534 (6).
The dissenting opinion suggests that a plaintiff, who sues for more than he recovers, should not be allowed attorney’s fees. Why not? If A owes B, and A will not pay B one red cent, then it is necessary for B to employ an attorney in order to collect anything on his claim. When they get into the trial, and B recovers one-half of what he sues A for, should this be a justification for failure to allow attorney’s fees? I say not, because B could not have recovered anything but for the services of an attorney, who must be paid by somebody.
It is quite correct, as asserted in the dissenting opinion, that there are decisions holding that if there is not a full recovery, attorney’s fees should not be paid. Most of these, if not all, are insurance cases, under the bad faith statute. But there are cases holding to the contrary—holding that where defendant refuses to pay anything, and thereafter, only a part of the amount sued for is recovered, the defendant may still be subjected to payment of attorney’s fees. And I submit that this line of cases is the more authoritative, and some of them are older, which brings the rule of stare decisis into play. Some of these decisions are: Central Mfrs. Mut. Ins. Co. v. Graham, 24 Ga. App. 199 (4) ( 99 SE 434 ); Metropolitan Life Ins. Co. v. Lovett, 50 Ga. App. 763 (4) ( 179 SE 253 ); New York Life Ins. Co. v. Williamson, 53 *528 Ga. App. 28, 38 ( 184 SE 755 ); Canal Ins. Co. v. Winge Bros., 97 Ga. App. 782, 786 ( 104 SE2d 525 ).