
    41386.
    WHITLOCK v. INTERSTATE LIFE & ACCIDENT INSURANCE COMPANY.
    Argued July 8, 1965
    Decided September 9, 1965.
   Felton, Chief Judge.

This case arose out of the same action as Interstate Life &c. Ins. Co. v. Whitlock, 112 Ga. App. 212, ante. The trial court, after directing the verdict for the face amount of the policy in favor of the plaintiff-insured, submitted the issue of bad faith to the jury. The jury returned a verdict in favor of the plaintiff in the sum of $1.00 for bad faith and $1,000 as attorney’s fees. The court granted the defendant-insurer’s motion for judgment notwithstanding the verdict as to that portion of the verdict awarding bad faith penalties, to which judgment the plaintiff excepts. Held:

In an action to recover penalties and attorney’s fees for the refusal in bad faith of an insurer to pay a claim, the burden of showing that the refusal was made in bad faith is on the insured and a defense going far enough to show reasonable and probable cause for making it would vindicate the good faith of the company as effectually as would a complete defense to the action. Interstate Life &c. Ins. Co. v. Williamson, 110 Ga. App. 557 (139 SE2d 429) by answer to certified question in 220 Ga. 323 (138 SE2d 668). Whether or not the jury finds the defense of the company to the action complete in the new trial granted in the company’s appeal, the evidence, as set out in our ruling on the company’s appeal, infra, was sufficient to show “reasonable and probable cause” in the denial of the claim. There was no evidence that the decedent had been known to drink heavily in the past and that his blood contained enough alcohol, -0.30%, to raise a presumption of intoxication. The trial court erred initially in submitting the issue of bad faith to the jury since there was evidence which showed reasonable and probable cause for the denial of the claim. The court therefore did not err in its judgment granting the judgment n.o.v. in favor of the defendant-insurer.

Judgment affirmed.

Jordan and Deen, JJ., concur.

William Edward Spence, for plaintiff in error.

Nall, Miller, Cadenhead & Dennis, Theodore G. Frankel, Lynn A. Downey, contra.  