concurring specially. I do not concur in the ruling of the majority to the effect that an action under Ga. L. 1912, pp. 119, 124 (the act from which former Code § 56-519 was copied) is not for a tort; nor do I agree that this court so held in Bankers Fidelity Life Ins. Co. v. Morgan, 104 Ga. App. 894, supra; nor do I agree that the case of John V. Farwell Co. v. Jackson Stores, 137 Ga. 174, supra, holds that a judgment for attorney’s fees may not be recovered in a suit for a statutory liability because of bad faith and litigiousness. In that case no attorney’s fees were sought for bad faith or litigiousness but were sought on another ground. I think that the repealed law created a duty the breach of which was a tort under Code § 105-101.
However, I concur in the judgment as to attorney’s fees because in my opinion there was no evidence to authorize a finding of bad faith or litigiousness. There is no evidence which tends to show that the insurance company in bad faith contended that its agents were not guilty of the improper conduct charged against them.