State Farm Mutual Automobile Insurance v. Wendler

Felton, Chief Judge. The motion for a summary judgment in this case is based solely on the pleadings which is equivalent to a general demurrer to the answer. The answer sets forth a good defense to the action in that sufficient facts are alleged to prove the lack of co-operation by the insured whichever version of the occurrence given by the insured was true. The pleadings were not pierced by affidavits or interrogatories which would remove from the case all justiciable issues. Cotton States Mut. Ins. Co. v. Martin, 110 Ga. App. 309, 310 (138 SE2d 433); Durrett v. Tunno, 113 Ga. App. 839 (149 SE2d 826). The provision for co-operation is valid, and a failure to co-operate will defeat recovery on the policy. Blashfield’s Cyclopedia of Automobile Law and Practice, Yol. 6, Part 2, Section 4059, pp. 71-72; Henderson v. Rochester American Ins. Co., 254 N.C. 329 (118 SE2d 885). In Home Indemnity Co. of New York v. Standard Acc. Ins. Co. of Detroit, 167 F2d 919, 924 (9 Cir.), it was stated: “Truthfulness seems to be the keystone of the cooperation arch. The insured must tell his insurer the complete truth concerning the accident, and he must stick to this truthful version throughout the proceedings. He must not embarrass or cripple his insurer in its defense against a civil suit arising out of the accident, by switching from one version to another. He must not blow hot and cold to suit his personal convenience.” See 8 Appleman, Insurance Law & Practice, 126, 136, 143 §§ 4779, 4782, 4783. National Union Fire Ins. Co. v. Carmical, 99 Ga. App. 98 (107 SE2d 700) is clearly distinguish [456] able from this case in that in that case the insured gave both versions on the phases of liability to the insurance company before the trial of the case against the insured. In that case the insurance company had both versions before it before the trial of the damage action and had the opportunity to seek an advantageous settlement before the trial. That is not the case here. The insured in this case gave no indication of any error in her statement to the investigator or of any expectation that she would not stand by it until she testified differently on the stand. If she testified truthfully, as we must assume she did, she suppressed the truth until that time, and the suppression of truth is as false and fraudulent as a wilful misrepresentation. Davis v. Hopkins, 50 Ga. App. 654 (179 SE 213); Southern v. Floyd, 89 Ga. App. 602 (80 SE2d 490). In the absence of a piercing of the pleadings the court erred in granting the motion for a summary judgment. The records sent up in any other case are irrelevant on the question raised by the appeal and will not be examined or considered by this court. Judgment reversed. Bell, P. /., Frankum, P. J., Hall, Eberhardt and Deen, JJ., concur. Jordan, Pannell and Quillian, JJ., dissent.