Cotton States Mut. Ins. Co. v. Booth
| Decision Date | 29 September 1967 |
| Docket Number | No. 42995,No. 3,42995,3 |
| Citation | 157 S.E.2d 877,116 Ga.App. 410 |
| Parties | COTTON STATES MUTUAL INSURANCE COMPANY v. H. A. BOOTH, Jr |
| Court | Georgia Court of Appeals |
Syllabus by the Court
Representations as to the legal effect of a written agreement made to the defendant by the plaintiff's agents prior to the execution of the written agreement between the parties merged into and were extinguished by that instrument and can not be used to contradict its explicit provisions.
Cotton States Mutual Insurance Company filed an action against H. A. Booth, Jr., in Ware Superior Court seeking recovery of $1,815 under a loan receipt. The petition alleges that the plaintiff issued to the defendant a family combination automobile policy which insured the defendant's 1961 Dodge and included $50 deductible collision coverage. On July 19, 1962, the defendant submitted to the plaintiff a sworn statement in proof of loss in the amount of $1,865, less $50 deductible, for damage to his vehicle as a result of a collision which occurred on June 4, 1962. The plaintiff loaned the defendant $1,815 and received a loan receipt from him. Thereafter, the defendant filed suit against the alleged tortfeasor for damages arising out of the collision and ultimately settled the suit without repayment of the loan to the defendant.
The loan receipt provided that the amount stated was repayable only to the extent of any net recovery made by the defendant and further provided that the defendant agreed to prosecute a suit for the loss, 'with all due diligence, at the expense and under the exclusive direction and control of said insurance company.'
The defendant's answer admitted the execution of the proof of loss but asserted that it was prepared by the plaintiff's agent in whom the defendant reposed trust and, as a result, the defendant did not read or know the contents of the same; that the defendant signed the documents relying on the representations of the plaintiff's agent that the matter was fully and finally settled between them; that the plaintiff would recover the loss through its own efforts and that the defendant had no further responsibility in that regard; that as a result of these statements and acts the plaintiff is estopped from asserting the validity of the loan receipt.
The plaintiff filed a motion for summary judgment asserting that there was no material issue of fact because by settling the litigation the defendant released all adverse parties and thereby deprived the plaintiff of its subrogation rights. Thus, the plaintiff was entitled to judgment as a matter of law. The motion was predicated on the documents attached as exhibits to the petition (sworn proof of loss and loan receipt), the insurance policy and the defendant's deposition. After hearing argument, the trial judge entered an order denying the plaintiff's motion for summary judgment and the plaintiff appealed to this court.
Conyers, Fendig, Dickey & Harris, Albert Fendig, Jr., Brunswick, for appellant.
Leon A. Wilson, II, Benjamin Smith, Jr., Waycross, for appellee.
The defendant's deposition, in substance, followed what was alleged in his answer. He testified that the plaintiff's agent showed him some papers to sign and then related: The defendant also testified: 'He told me they wanted me to sign the release over the car, over to them so they could take it and go ahead and see what they could do with it about getting their money back'; relying entirely on...
To continue reading
Request your trial
-
Prudential Ins. Co. of America v. Perry
...729; West v. Carolina Housing & Mortgage Corp., 211 Ga. 789, 89 S.E.2d 1288, and others of like tenor. Cf. Cotton States Mut. Ins. Co. v. Booth, 116 Ga.App. 410, 412, 157 S.E.2d 877. The reason for the rule is to afford opportunity to correct any error and make it truthful, for when the app......
-
Seale v. Miller
...as to matters of law. Robbins v. National Bank of Georgia, 241 Ga. 538, 246 S.E.2d 660 (1978); Cotton States Mutual Ins. Co. v. Booth, 116 Ga.App. 410, 157 S.E.2d 877 (1967). If plaintiff chose to make assumptions based upon statements by the defendants, knowing defendants were neither acco......
-
Robbins v. National Bank of Georgia
...that fraud cannot be predicated upon misrepresentations of law or misrepresentations as to matters of law. Cotton States Mut. Ins. Co. v. Booth, 116 Ga.App. 410, 157 S.E.2d 877 (1967). The trial court did not err in granting the appellees' motion for judgment on the pleadings on the issue o......
-
American Sec. Van Lines, Inc. v. Amoco Oil Co.
...and this is especially so where there is no confidential relationship between the parties. (Cits.)' Cotton States Mut. Ins. Co. v. Booth, 116 Ga.App. 410, 413, 157 S.E.2d 877, 879; Swofford v. Glaze, 207 Ga. 532, 63 S.E.2d 342; Clinton v. State Farm &c. Co., 110 Ga.App. 417(2a), 138 S.E.2d ......