Day v. Randolph

• Decision Date: 09 September 1981
• Docket Number: No. 62391,62391
• Citation: 283 S.E.2d 687,159 Ga.App. 474
• Parties: DAY v. RANDOLPH et al.
• Court: Georgia Court of Appeals

Page 687

283 S.E.2d 687

159 Ga.App. 474

DAY v. RANDOLPH et al.

No. 62391.

Court of Appeals of Georgia.

Sept. 9, 1981.

William H. Pinson, Jr., Brent J. Savage, Savannah, for appellant.

Stanley Karsman, Jack H. Usher, James E. Yates III, A. Martin Kent, Savannah, for appellees.

DEEN, Presiding Judge.

The appellant Day, plaintiff in the trial court, was a member of a volunteer rescue group in Chatham County some of whose members also belonged to the Civil Air Patrol (CAP), an organization which apparently requires application, dues, and attendance at some meetings, none of which Day apparently did, although he apparently believed himself to be a member. On the day in question he was informed by a buddy who was a member of CAP that a tornado had touched down near Savannah and that they were needed for a rescue mission. Day and others assembled at the designated spot; there is an apparent dispute in the evidence as to whether a requested CAP mission number was actually furnished the group. They were directed to a house which had been struck and while removing tree limbs from the roof Day fell and was badly injured. He had been told both before and after the accident that he was a member of CAP and would be taken care of. When however, the insurer refused medical benefits, Day filed this suit against CAP and his alleged superior, Browne. The original action and also an amendment thereto sounded alternately in negligence and in fraud. Defendants moved for summary judgment and, after hearing, were granted a partial summary judgment as to the counts sounding in fraud and deceit. Judgment was denied as to the negligence counts. Plaintiff appeals.

There is strong evidence that on several occasions codefendant Browne and others did represent that Day was a member of the CAP, and that on the day in question when there was an effort to obtain a mission number there were statements that all in the group which had assembled, including Day, were members. In fact, the original telephone call by Browne contained the message, "We have a mission," which indicated a CAP endeavor. Appellant testifies that he relied on these and prior representations and would not have gone to the scene if he had known he was not a member. Although Day now contends that Browne and others knowingly and wilfully misrepresented his status to him and although he may have been convinced that he was included as a member, the evidence demands a finding that he has not presented the elements of an action in fraud and deceit. The five elements necessary to be shown are that the misrepresentation or falsehood was knowingly made, that it...