Benefield v. Malone

• Decision Date: 30 September 1965
• Docket Number: 41518,Nos. 41517,No. 2,s. 41517,2
• Citation: 145 S.E.2d 732,112 Ga.App. 408
• Parties: Evelyn BENEFIELD v. Henrietta S. MALONE. Henrietta S. MALONE v. Evelyn BENEFIELD
• Court: Georgia Court of Appeals

Page 732

145 S.E.2d 732

112 Ga.App. 408

Evelyn BENEFIELD v.Henrietta S. MALONE.

Henrietta S. MALONE v.Evelyn BENEFIELD.

Nos. 41517, 41518.

Court of Appeals of Georgia, Division No. 2.

Sept. 30, 1965.

Syllabus by the Court

1.The sending of a draft by an insurer for the amount claimed in a proof of loss containing an assignment of the cause of action clause, constitutes an acceptance of the assignment by the insurer.

2.Affidavits containing mere legal conclusions and allegations which would not be admitted into evidence present no issues of fact on motion for summary judgment.

This case has previously been considered by the court in Benefield v. Malone, 110 Ga.App. 607, 139 S.E.2d 500, where the grant of a summary judgment on the ground that the plaintiff had assigned her cause of action to her insurer was reversed because no acceptance of the assignment had been proven.Since the decision in that case, the defendant moved again for summary judgment and showed by deposition that before the filing of the original action the plaintiff's insurer through its agent sent a letter dated November 16, 1962, and a draft to the plaintiff in the amount sought in the proof of loss filed by the plaintiff, and it was stipulated and agreed that the draft was received and used on behalf of plaintiff.Plaintiff's action was filed April 10, 1963.

In opposing the second motion for summary judgmentplaintiff submitted her own affidavit, dated June 15, 1965, and the affidavit of a vice-president of the insurer, dated June 9, 1965, in which it was asserted that Mrs. Benefield did not, in submitting the proof of loss containing the assignment, intend to assign her cause of action, and that the insurance company did not, in accepting the proof of loss and making payment thereunder, intend to purchase her cause of action.A loan receipt was executed between Mrs. Benefield and the company September 24, 1963 in which it was recited that for a consideration of $1.00 paragraphs 4 and 5 of the proof of loss (containing the assignment) were canceled.

To the order which overruled the motion of the plaintiff to dismiss the motion for summary judgment of defendant, granting the defendant's motion for summary judgment and dismissing plaintiff's petition plaintiff excepts.

In a cross billthe defendant excepts to the dismissal of her counterclaim after her motion for summary judgment had been granted.

Ware, Sterne & Griffin, Richard H. Johnston, Atlanta, for plaintiff in error.

Gambrell, Harlan, Russell & Moye, Sidney F. Wheeler, Atlanta, for defendant in error.

EBERHARDT, Judge.

1.The proof of loss filed by the plaintiff contained the following: 'The insured hereby assigns and transfers to the company any claim or cause of action which the insured now has or may hereafter have to recover against any person or persons for damage resulting from said occurrence and loss above described * * *' As stated by the court when the case was last before it: 'Without doubt the language of these paragraphs, if the 'proof of loss' containing them had been accepted by the insurer, would have effectuated an assignment of the cause of action.'Benefield v. Malone, 110 Ga.App. 607, 613, 139 S.E.2d 500, 505.

Thus the issue before us is whether the sending of a draft by an agent of the insurer to the insured in the exact amount claimed by the insured in the proof of loss constituted an acceptance on the part of the insurer effectuating an assignment of the cause of action which was outstanding and in effect on the date this case was filed.

The issuance of the draft by the insurer, which was received and used for plaintiff's benefit did constitute an acceptance of the assignment.'An offer may contemplate acceptance by the doing of a proposed act, and in such case, if the act be performed while the offer is in life, a binding contract is effectuated, and the person making the offer must abide by its terms.'Hollingsworth v. Peoples Bank, 179 Ga. 704, 710, 177 S.E. 743, 747;Watson v. Atlanta Joint Stock Land Bank, 56 Ga.App. 10, 11, 192 S.E.2d 72.'Such acceptance or assent may be given by a duly authorized agent of the assignee, and may be shown by actions or conduct on the part of the assignee.'6 C.J.S.Assignments§ 73, p. 1124.The presentment of a check for payment constitutes acceptance of an offer.Thompson v. Hecht, 110 Ga.App. 505, 507, 139 S.E.2d 126.

2.Did the affidavits, of Mrs. Benefield and the insurer's view-president, together with the loan receipt by which the assignment of the cause of action was canceled, all subsequent to the filing of her suit, show the existence of a genuine issue of fact?We think not.

Neither the trial court nor this court is concerned with the credibility of the affidavits--only with the...