dissenting from Division 1. The trial court should be affirmed in. its granting of plaintiff’s motion for directed verdict and denial of defendant’s motion for judgment notwithstanding the verdict.
This case is on its second appeal to this court, on appeals by the insurer in a garnishment case against it based on a judgment obtained against its insured in an automobile collision action. On the first appeal the insurer sought a summary judgment in its favor because of alleged lack of cooperation on the part of the insured in the defense of the damage action in which the judgment against the insured was obtained. This court affirmed the trial judge on the *803first appeal in the denial of the summary judgment, holding in part in the 4th Division of the opinion as follows: "It was shown that the case had been continued prior to the time on which the final trial was held, but when counsel for the insurer learned that the insured was not present, the record does not show that he moved for further continuance in order to serve a 'reservation of rights’ notice upon the defendant, but contented himself with advising the trial court that he was reserving his rights to contend the insurance was not effective because of her failure to co-operate. The trial court, however, was not the agent of the insured person, and when an insurance company elects to participate in a trial by defending the action without giving such 'reservation of rights’ notice, then it is estopped to later contend the insurance is not effective.” Cotton States Mut. Ins. Co. v. Proudfoot, 123 Ga. App. 397 (4) (181 SE2d 305). On this second appeal the complaint is the overruling of the motion for judgment notwithstanding the verdict. The majority opinion says "At the trial of the case [the garnishment case], additional evidence was introduced which materially changes the results of that decision.” Among the so-called changes in the evidence, the following is listed: "It [the insurer] also reiterated that it reserved the right to claim breach of the non-cooperation clause while undertaking defense of the suit. The record shows further that Cotton States did request a continuance when she [the insured] failed to appear the second time [the damage action was called for trial] and it was denied.” The majority opinion then concludes that "Since the evidence is substantially different from what appeared on prior review, the former ruling is not the law of the case” and "Therefore the issue of estoppel for failure to serve a reservation rights notice is removed from the case and the only question is whether the insurer acted with diligence and in good faith to obtain the insured’s cooperation.”
With these statements as to a change in facts and with the conclusion reached therefrom, I am compelled to disagree for the very simple reason that on the question of es*804toppel there has been no material change in the evidence, which in any way or manner affects the ruling on the prior appeal or authorizes the grant of a judgment n.o.v. for the insurer garnishee here. The majority statement of facts infers that a motion to continue the damage action was made for the purpose of serving a reservation of rights notice on the insured defendant in that action. On the contrary, the evidence shows that when the insured failed to appear the second time on the trial of the damage suit after it had been continued once, counsel for the insurer made a motion for continuance because of her absence, but made no motion for continuance for the purpose of notifying the insured of its reservation of right to claim a breach of the cooperation clause. Nor was the insurer confronted with a sudden alternative (which is the only difference claimed by the insurer appellant in its brief), for prior to the trial of the damage action, appellant had written and mailed a letter to the insured saying that if she was not present at the trial they would withdraw from the defense of the damage suit case. How then, can they claim that because of her nonappearnce they were forced to defend the case, or confronted with an emergency decision to defend without notifying the insured, when in fact the insurer had already notified the insured it would not defend under the circumstances? Even if it had been confronted with a sudden or emergency alternative choice, this fact would not in any way affect the ruling on the prior appeal as this very same contention was made at that time. However, there is some additional evidence as to whether a reservation of rights notice was given. This is the letter written by Charles F. Vickers, claims manager of the insurer, to the insured on April 28, 1969, when the insured lived in Oakland, California. The material parts of the letter are as follows: "Mr. Tom Whelchel of Conyers, Fendig, Dickey, Fendig and Whelchel, Attorneys at Law, Brunswick, Georgia, informs me that the litigation pending against you in Camden County, Georgia, is set for trial on May 5, 1969, and that you have been so advised in his phone call to you of last week and that you have been fur*805ther advised that he will meet you and arrange for your stay during the trial of the case.
"I am forwarding to Mr. J. S. Rose, Manager, Brown Brothers Adjusters, 2014 Lakeshore Avenue, Oakland, California, phone 452-3681, by carbon copy of this letter, two of our company’s checks in the amount of $333.50 each, representing air and ground transportation for you and your husband to attend the trial in Camden County. The amount of the check represents round trip [fare] and you will be accommodated in Brunswick at our expense.
"We wish you to fully understand that should you fail to attend upon the court in Camden County on May 5, 1969, for the purposes of trial of this case, it is our intention to disclaim any further responsibility in the matter and to withdraw from your defense.
"We advised you at the time of learning of this litigation that we were undertaking your defense strictly upon reservation of our rights and that any action on the part of the company would not waive and should not be construed as a waiver any of the defenses possessed by the company, based upon your failure to cooperate, nor your failure to timely notify the company of the accident and the ensuing litigation. The actions on the part of our company have been taken this far under this understanding and we again reiterate our position.
"Mr. Rose of Brown Brothers Adjusters in Oakland, will deliver to you checks for your transportation.”
There is testimony that checks sent to the adjustors in Oakland, California, arrived before the time set for the trial and the checks were delivered to the insured. The writer of the letter testified that other than sending the letter he did not personally make any other reservation of rights or give notice of any kind to the insured. There was no evidence that any other notice or reservation was given. The evidence also disclosed that the letter of April 28th was sent registered mail and "the return receipt was delivered back” to the writer of the letter "stamped by the Post Office in Oakland.” The evidence fails to disclose the date *806of delivery of the letter, nor was the return receipt introduced in evidence.
What, then, does this evidence prove? It does not prove that any prior reservation of rights was made before this letter was written, and the statement in the letter as to prior notice of reservation of rights is a mere self-serving declaration. The proof submitted does not demand a finding that the insured received the letter itself prior to the time the insurer took action to defend the case upon the actual trial thereof. Since the evidence shows that a copy of the letter of April 28th mailed to the adjustors which included the checks arrived prior to the trial on May 5th, the jury may have been authorized to find that the original letter was received by the insured prior to the act of the insurer in actively defending the damage case upon the trial.
If the letter was a sufficient notice of reservation of rights as to the action of the insurer in subsequently actively participating in the defense of the damage case at the trial, I would, for these reasons and on this issue alone, affirm the trial judge in. refusing to grant the insured garnishees’ motion for judgment n.o.v., and would reverse him for directing a verdict in favor of the appellee-plaintiff in fi. fa., for the reason that a jury issue would be involved. However, I am of the opinion that the letter, when properly construed, and even if received by the insured before the trial, did not constitute the notice of such reservation of rights. A close examination and reading of that paragraph of the letter dealing with the reservation shows it refers solely to past actions of the insurer and insured and particularly when it then states "we again reiterate our position.” That this was the intent and purpose of the letter, is fortified by the fact that in the identical letter the insurer notified the insured that in the event she failed to cooperate by attending the. trial set for May 5, 1969, "it is our intention to disclaim any further responsibility in the matter and to withdraw from the defense.” This definite statement that under this circumstance the insurer would withdraw from the defense at the- trial, conclusively shows the reservation *807of rights "reiterated” did not apply to the action of the insurer in subsequently defending at the trial contrary to its statement in the letter. For these reasons I would affirm the judgment in every respect; that is, the denial of a judgment n.o.v. for the garnishee and the direction of a verdict for the plaintiff in fi. fa.
I am authorized to state that Chief Judge Bell and Judges Evans and Clark concur in this dissent.