Green v. Johns, 34107

• Decision Date: 16 July 1952
• Docket Number: No. 1,No. 34107,34107,1
• Citation: 72 S.E.2d 78,86 Ga.App. 646
• Parties: GREEN v. JOHNS et al
• Court: Georgia Court of Appeals

Page 78

72 S.E.2d 78

86 Ga.App. 646

GREEN v. JOHNS et al.

No. 34107.

Court of Appeals of Georgia, Division No. 1.

July 16, 1952.

Rehearing Denied July 29, 1952.

Syllabus by the Court.

1. The motion to dismiss the writ of error is without merit and is denied.

2. Under the 'loan receipt' agreement in the present case, reciting, in adjusting a loss under an insurance policy by making a loan to the insured, without interest, that such amount representing the damage was repayable only to the extent of any subsequent recovery against the person causing the loss to the plaintiff, the insured, which recovery was pledged to the insured as security for the loan, that the insured would not settle the claim without the consent of the insurer, and that the insurer should be the agent of the insured to prosecute the claim at its expense, the insured to execute all necessary documents to carry into effect the agreement, and all legal proceedings to be under the exclusive direction and control of the insurer--such agreement operates, as respects the right of the insured to sue as the real party in interest, as a loan, and not as a payment of the loss effecting subrogation to the insurer.

3. Under the above-stated ruling, it is unnecessary to pass upon the objections in the first special ground of the motion for new trial and in the exceptions pendente lite as to the refusal of the trial judge to construe the 'loan receipt' and hear the evidence without the aid of a jury.

4. The portion of the charge of the court complained of in the second special ground of the motion for new trial not being set out therein, nothing is presented for decision.

W. W. Green sued L. C. Johns and A. B. Johns, doing business as Johns Brothers, in the City Court of Albany, and alleged that the defendants' negligence while finishing the floors in a house built for the plaintiff directly and proximately caused an explosion and fire and damaged the plaintiff in the sum of $482.06. In their answer as amended the defendants contended in paragraph 7: 'The house was insured in Old Colony Fire Insurance Company of Boston, Massachusetts, and following the damage, plaintiff made proof of the claim to the insurance company, who paid him in full, and that at the time of filing of suit, the plaintiff had no interest or claim against defendants, and was not interested in the recovery of any amount, and thus is not the real party in interest in this case. The amount of money received by the plaintiff was not paid as a loan, but in discharge of the insurance company's liability under its policy.' The plaintiff then filed a motion requesting the court to hear evidence on such issue and showing the following: He carried a policy of insurance with Old Colony Fire Insurance Company, which, following the fire, advanced the amount of the loss as a loan, repayable in the event of recovery. The policy contained no assignment or transfer of any chose in action which might arise to the benefit of the plaintiff as a result of a loss covered by the policy. The plaintiff signed a proof of loss after the fire, but it contained no subrogation agreement or assignment of any right, title, or interest the plaintiff may have had to any chose in action arising in his favor as a result of the fire. On receipt of payment for the loss, the plaintiff executed and delivered to the company a receipt acknowledging payment as a loan subject to repayment in the event the plaintiff should effect any recovery for damages, and pledging any such recovery as security for repayment of the loan. The loan receipt retained all right of action for damages in the name of the plaintiff and made no provision for the company to sue as assignee or transferee. The plaintiff signed no other paper affecting his right of action. Following the execution of the loan receipt, the plaintiff sued the defendants for damages suffered as a result of their negligence. The plaintiff insisted that the defendants' contention that the plaintiff is not the real party in interest raised no issue of fact for the jury, but was a dilatory plea which should be disposed of by the court prior to trial as an issue of law. The motion then prayed the court to hear evidence on the point out of the presence of the jury to determine whether or not there was a question of fact for the jury; and, if none, to determine the validity of the plea and the admissibility of evidence so as to prevent irreparable harm and prejudice and save the time of the court and the jury. The court denied the motion, and the plaintiff filed exceptions pendente lite, upon which he now assigns error in the main bill of exceptions. Upon trial of the plea before a jury, a verdict was returned in favor of the plea; and the court, reciting the verdict, entered a judgment dismissing the case. The plaintiff's amended motion for a new trial was denied. To this judgment the plaintiff excepted.

Watson & Keenan, Albany, for plaintiff in error.

Burt & Burt, Albany, for defendants in error.

WORRILL, Justice (after stating the foregoing facts).

1. In this court the defendant in error made a motion to dismiss the writ of error on the ground that the bill of exceptions contains no assignment of error on a final judgment. The motion is without merit and is denied for the following reasons. A judgment reciting the rendition of the verdict in favor of the defendant's plea in bar and dismissing the plaintiff's action was entered by the trial court. The plaintiff thereupon filed a motion for new trial and by amendment added two special grounds. Error was assigned on the judgment denying the motion for new trial. If it could be said that the judgment reciting the rendition of the verdict and dismissing the plaintiff's action was the final judgment, rather than the judgment denying the motion for new trial, the motion is without merit because, not only was error assigned on the judgment overruling the motion for new trial, but the judgment dismissing the plaintiff's action--which the movant contends was the final judgment--was specified to be sent up as a part of the record and appears therein. It is thus shown that the case was terminated in the trial court, and this court has jurisdiction to review the judgments complained of in the bill of exceptions. Albany Federal Savings & Loan Association v. Henderson, 198 Ga. 116, 31 S.E.2d 20.

2. Included in the answer of the defendants denying the right of the plaintiff to recover, was a plea in bar on the ground that the plaintiff had assigned and transferred his rights, and had been paid in full for his loss and was not the real party in interest and not entitled to maintain the action. It appeared that there was no conflict in the evidence, and the question turned upon the construction of a so called 'loan receipt' executed by the plaintiff to the insurance company and reading as follows: 'Received from the Old Colony Insurance Company (hereinafter referred to as 'Company') the sum of four hundred eighty-two 06/100 dollars ($482.06) as a loan, without interest, repayable only in the event and to the extent of any net recovery the undersigned may make from any person, persons, corporation or corporations, or other parties, causing or liable for the loss or damage to the property described below, or from any insurance effected on such property, and as a security for such repayment the undersigned hereby pledges to the said 'company' all his, its or their claim or claims against said person, persons, corporation or corporations or other parties, or from any insurance carrier or carriers, and any recovery thereon, and hereby delivers to said 'company' all documents necessary to show his, its or their interest in said property. The undersigned covenants that no settlement has been made by the undersigned with any person, persons, corporation or corporations or other parties against whom a claim may lie, and no...