Brown v. Seaboard Lumber & Supply Co., 22922
| Decision Date | 07 May 1965 |
| Docket Number | No. 22922,22922 |
| Citation | 221 Ga. 35,142 S.E.2d 842 |
| Parties | Lula Belle BROWN v. SEABOARD LUMBER & SUPPLY COMPANY, Inc., et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
The plaintiff, endeavoring to set aside a release obtained by her insurer in 1961, failed to allege sufficient facts in the petition to except her from the rule pronounced by this court in Aetna Casualty & Surety Co. v. Brooks, 218 Ga. 593, 129 S.E.2d 798.
Lula Belle Brown brought this equitable action against Seaboard Lumber & Supply Company, Inc., Virgil Hill and Northern Insurance Company of New York (hereinafter referred to as Seaboard, Hill and Northern respectively) in the Fulton Superior Court. Briefly stated, the pertinent allegations of the petition were: that the plaintiff was insured by Northern under a standard automobile liability policy which contained a provision--'the company may make such investigation and settlement of any claim or suit as it deems expedient'; that the plaintiff was injured in an automobile collision by Hill, an employee of Seaboard; that the plaintiff sued Hill and Seaboard who filed a motion for summary judgment based on a purported release whereby Seaboard released the plaintiff from all liability resulting from the collision; that Northern obtained the release which Seaboard executed to the plaintiff for $80.86 consideration; that, in making the settlement, Northern did not contact or inform the plaintiff and acted without the plaintiff's knowledge; that up to the time of the settlement [10 days after the accident] Seaboard had not made any claim for damages against the plaintiff but that Northern sought out Seaboard; that Northern's acts in obtaining a release and settlement were for its own benefit and were the result of disloyal and fraudulent acts of Northern which failed to exercise the loyalty towards its principal, the plaintiff, as required by law; that Hill and Seaboard knew that the plaintiff had no knowledge of the settlement 'for the reason that plaintiff was transported from the scene of the collision in an ambulance to the hospital and said defendants were well aware of that fact'; that, because of the concurrent and conspiring acts of the defendants the plaintiff has been deprived of her cause of action against Hill and Seaboard; that Northern's acts in securing the release were beyond the scope of its agency and have never been ratified by the plaintiff; that after the accident the plaintiff notified the defendant Northern as required by the policy but never directed nor authorized Northern to settle any alleged claim of Seaboard.
The prayers were: that Hill and Seaboard be enjoined from prosecuting their motion for summary judgment pending a final adjudication of the instant action; that the release be declared null and void and not binding on the plaintiff; that, if for any reason the release cannot be declared null and void, the plaintiff have judgment against Northern for $75,000.
Attached as exhibits to the petition were: 1) a copy of the insurance policy between Northern, the insurer, and the plaintiff, the insured, which contained the provision--'the company may make such investigation and settlement of any claim or suit as it deems expedient'; 2) the petition of the plaintiff against Hill and Seaboard alleging negligence on the defendant's part resulting in a collision and damages to the plaintiff amounting to $75,000; 3) a styled 'corporation release' dated June 8, 1961, whereby Seaboard for a consideration of $80.86 released the plaintiff 'its successors and assigns, and/or his, her or their associates, heirs, executors and administrators, and all other persons, firms or corporations of and from any and every claim, demand, right or cause of action, of whatsoever kind or nature, and especially in connection with or as the result of a certain accident happening on or about the 29[th] day of May, 1961, in the City of Atlanta, State of Georgia.'
To the petition Seaboard filed its general demurrer, Northern filed its general and special demurrers, and Thomas A. Veitch, administrator of the estate of Hill, now deceased, made an oral motion, in the nature of a general demurrer....
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