ON MOTION FOR REHEARING. Code § 56-706 provides for the payment of a penalty of not more than 25 percent on the liability of an insurance company and reasonable attorney's fees for the prosecution of the case against the insurance company, "Provided, it shall be made to appear to the jury trying the case that the refusal of the company to pay said loss was in bad faith." (Emphasis added.) Since the court is unable to say what the evidence will show on the question of the company's bad faith in refusing to pay the claim, and since this is a question peculiarly *Page 616 within the province of the jury, the court erred in sustaining the demurrer to so much of the petition as prayed for the penalty and reasonable attorney's fees (Paragraph 15). See New York LifeIns. Co. v. Williamson, 53 Ga. App. 28, 37 (184 S.E. 755);New York Life Ins. Co. v. Bradford, 55 Ga. App. 248, 258 (189 S.E. 914); Liberty Mutual Ins. Co. v. A. C. L. R. Co.,66 Ga. App. 826 (19 S.E.2d 377).
Motion for rehearing denied. Gardner and Townsend, JJ.,concur.