Clark v. American Cas. Co.
| Decision Date | 12 September 1957 |
| Docket Number | No. 2,No. 36790,36790,2 |
| Court | Georgia Court of Appeals |
| Parties | L. C. CLARK v. AMERICAN CASUALTY COMPANY |
Syllabus by the Court
1. The special demurrer attacking the petition on the ground that no copy of the policy of collision insurance was attached thereto or set forth therein was without merit where the action was one for breach of contract based on covenants contained in a loan receipt executed by the defendant upon payment of a loss occurring under the policy.
2. In an action of the nature above indicated, where the petition alleged that the defendant breached his covenants contained in the loan receipt settling his claim and releasing the third party whose negligence caused the damage to the automobile, it was not necessary that the petition set forth in detail the negligence of such third party, and a special demurrer attacking the allegations of negligence with respect to such third party on the ground that they were vague and indefinite was without merit.
3. The petition was not subject to the general demurrer for any of the reasons assigned.
4, 5. The trial court did not err in admitting in evidence the documents as complained of in the two special grounds of the motion for new trial.
6. The evidence authorized the verdict and judgment. American Casualty Company, of Reading, Pennsylvania, brought an action for breach of contract against L. C. Clark, doing business as Avondale Motors, who was alleged to be a dealer in new and used automobiles. The petition alleged in substance that the plaintiff had issued a certain policy of $100 deductible collision insurance covering a certain Chevrolet automobile owned by the defendant; that on December 5, 1955, at a time when the policy was in full force and effect, the automobile was damaged in a collision while being driven by one George P. Davis, Jr., who was a prospective purchaser of said automobile; that the defendant submitted to the petitioner a proof of loss in which it was set forth the the actual loss and damage to said automobile as the result of the collision was $500; that under the terms of said policy of insurance the plaintiff paid the defendant the sum of $400, and in consideration of said payment, the defendant executed on December 16, 1955, a loan receipt in which he agreed that said sum was a loan repayable in the event and to the extent of any net recovery that the defendant might make from any person causing or liable for the loss or damage to said automobile. The plaintiff alleged that the defendant further covenanted in said loan receipt that no settlement had been made by him with any other person against whom a claim might lie; that no release had been given or would be given without the written consent of the petitioner; and that by said loan receipt, the defendant appointed the plaintiff as his agent to collect from any person responsible for said loss or damage to said automobile, and further agreed to cooperate fully with the petitioner in any action which might be brought by the petitioner in the defendant's name against any person responsible for the loss. A copy of the proof of loss and of the loan receipt were attached as exhibits to the petition.
The petition alleged that after the execution of said loan receipt by the defendant a suit was filed in the Civil Court of DeKalb County at the instance of the plaintiff and in the name of the defendant against George P. Davis, Jr., seeking to recover damages in the amount of $600 representing the actual loss to said automobile as a result of said collision; that the petition in said suit alleged that the damage to the automobile resulted from the negligence of George P. Davis, Jr., in operating the automobile at the time and place of the collision; that prior to the bringing of said action, the same was discussed fully with the defendant and the defendant was requested to come to the office of the plaintiff's attorneys in order to discuss the matter, but that the defendant failed to do so; that on two separate occasions the case against Davis was on the trial calender of the Civil Court of DeKalb County, and defendant was notified to be present in order to testify therein, but that on each occasion the defendant failed and refused to appear and failed to cooperate with the plaintiff in the prosecution of the claim against the said George P. Davis, Jr.; that when the case was called the first time on September 11, 1956, counsel for George P. Davis, Jr., tendered an amendment to his answer setting out that L. C. Clark, the plaintiff in that suit and the defendant here, did on August 16, 1956, in consideration of the payment to him by George P. Davis, Jr., of the sum of $100, execute and deliver to the said George P. Davis, Jr., a general release whereby all claims set out in that suit were released. A copy of the release was attached as an exhibit to the petition. Finally, the petition alleged that because of the defendant's failure to cooperate with the prosecution of the suit against George P. Davis, Jr., and because of the execution of the release by the defendant, it was necessary that the suit be dismissed and that by said acts the defendant has injured and damaged your petitioner in the sum of $400 in breach of his contract with the plaintiff, said sum representing the amount paid under the terms of the loan receipt. The petition also set out that expenses for witness fees in the amount of $14 and court costs in the amount of $3, were necessarily incurred in the bringing of the foregoing suit and that the plaintiff was entitled to recover these sums; and, the plaintiff further alleged that on account of the bad faith of the defendant in failing to cooperate with the petitioner, and because of his wilful and malicious execution of the release without the knowledge or consent of the petitioner, and the wilful and malicious withholding of any information relative to the execution of said release and his failure to appear when the case was called for trial entitled petitioner to reasonable attorney's fees for the bringing of the prior suit, as well as for the bringing of the instant suit.
The defendant filed an answer in which he admitted the allegations with respect to the issuance of the policy, the occurrence of the loss and damage to the automobile, the submission of the proof of loss and the payment to him of $400. All other material allegations of the petition were denied. He also filed a general and two special demurrers which were overruled by the court.
The case came on for trial in the Civil Court of DeKalb County before a judge sitting without a jury. The plaintiff introduced oral testimony by two attorneys as to the amount of its claim for attorney's fees, as to the issuance of the policy, as to the payment of the loss, and as to the execution of the loan receipt by the defendant, and placed the defendant on the stand for cross-examination. The plaintiff also introduced into evidence copies of the pleadings in the former suit and copies of the proof of loss, loan receipt and release signed by the defendant and rested. The defendant did not introduce any evidence.
At the conclusion of the evidence, the trial judge entered an order and judgment finding for the plaintiff in the amount sued for ($414), and for the further sum of $100 as attorney's fees. The defendant filed a motion for new trial on the general grounds and amended it by the addition of 2 special grounds. The trial judge denied that motion and the exception here is to that judgment and to the judgment overruling the general and special demurrers.
Casper Rich, Franklin B. Anderson, Atlanta, for plaintiff in error.
Sarah Frances McDonald, Decatur, for defendant in error.
CARLISLE, Judge (after stating the foregoing facts).
1. The first ground of special demurrer attacks the petition on the ground that no copy of the policy of insurance is attached, nor are the complete terms thereof set out therein. This ground of demurrer is without merit. The action in this case was not an action on the policy, and the policy formed no basis for a recovery. The action was one for...
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