James v. Emmco Ins. Co.

• Decision Date: 12 May 1944
• Docket Number: 30465.
• Citation: 30 S.E.2d 361,71 Ga.App. 196
• Parties: JAMES v. EMMCO INS. CO.
• Court: Georgia Court of Appeals

30 S.E.2d 361

71 Ga.App. 196

JAMES v. EMMCO INS. CO.

No. 30465.

Court of Appeals of Georgia, Division No. 2.

May 12, 1944

Rehearing Denied May 27, 1944.

Syllabus by the Court.

W S. Northcutt, of Atlanta, for plaintiff in error.

Kobak & Levy, of Atlanta, for defendant in error.

SUTTON Presiding Judge.

The petition of Emmco Insurance Company Inc. against C. C. James alleged, in substance, that the plaintiff insured the defendant's automobile against damage by collision; that on November 1, the automobile was damaged in a collision with a truck owned by Cobb County; that the plaintiff had the automobile repaired at a cost to it of $156, and paid the defendant $8, all in full settlement of his said damages; that in consideration of said payments, the defendant on November 6, transferred and assigned his said claim against Cobb County to the plaintiff that in accordance with the provisions of the assignment, the defendant warranted that he had made no settlement with nor executed any releases to Cobb County and agreed that if he had committed any act which would prevent the plaintiff from collecting said claim from Cobb County, he would, on demand, repay the plaintiff all sums it had paid on account of said loss, and that in case suit was necessary to collect such reimbursement, he would pay a reasonable attorney's fee; that two days prior to the assignment of the claim to the plaintiff, the defendant had settled his claim with Cobb County and received $175 from the county; that by reason of said act, the plaintiff had been prevented from collecting said claim from Cobb County; that the plaintiff had demanded the sum of $164 from the defendant, and payment had been refused; that the defendant knowingly acted in bad faith in executing the assignment, and the sum of $25 would be a reasonable attorney's fee in said action; judgment was sought against the defendant in the sum of $189.

The defendant filed a plea of non est factum, denying the execution of the instrument sued on, and denied that the instrument contained the words "Cobb County" or made any reference to Cobb County at the time he signed it. Subject to the plea of non est factum, he filed an answer wherein he admitted that his automobile was insured against damage by collision by the plaintiff, and that the automobile had been damaged in a collision with a truck owned by Cobb County; he denied that his damage was limited to $164, and alleged that this sum represented the repair bill of $156 and an $8 item for towing in the automobile after it had been wrecked; he denied that these sums were paid in settlement of his damages, and alleged that they were paid as the repair bill and towing charge on the automobile; he denied that he had ever attempted to assign to the plaintiff any claim he had for other loss or damage, or that he was indebted to the plaintiff in any sum.

On the trial it appeared that the plaintiff insured the defendant's automobile against damage by collision. That on November 1, the automobile was damaged in a collision with a truck owned by Cobb County. The repair bill was $216, which amount, less the $50 deductible under the terms of the policy, made the plaintiff liable for $156. The plaintiff paid this $156 on the repair bill to the motor company, and paid the sum of $8 to the defendant to reimburse him for the towing charge. On November 1, the defendant notified the plaintiff of the collision and damage to his automobile. On November 4, the defendant filed a claim against Cobb County for personal injuries to himself and to an employee, and executed the following release "Received of G. H. McMillan, Commissioner of Roads and Revenues of Cobb County, the sum of $175, covering both personal and realty damage growing out of an automobile wreck on November 1, 1941. Said amount to be in full and complete settlement;" and at the same time executed a receipt in the identical language of the release above quoted. On November 6, the defendant executed a written instrument in favor of the plaintiff, headed "Release and Subrogation Agreement", which recited a consideration of the promise of the plaintiff to pay "C. C. James $8 and to the Pittman Motor Company, $156, total $164.00," and provided in part, "It is further understood and agreed that by reason of the above payment or payments and other valuable considerations, I transfer, assign, and set over absolutely to Emmco Insurance Company, its successors and assigns, all my claims, demands, rights and interest, right of action and actions against the said Cobb County, and all other persons, firms, corporations, and claimants vested in or accruing to me now or hereafter under the law as a result of said accident or in anywise incident thereto, hereby assigning and subrogating to and substituting said Emmo Insurance Co. Inc. in my place and stead fully and completely in every respect thereunto pertaining. *** I expressly warrant that I have made no settlement with or executed any release to any person or persons who may be liable for the claimed loss or damage. I expressly agree that if I have committed any act or hereafter commit any act which will prevent the Emmco Insurance Co. Inc. from collection from such person or persons, that I will repay to Emmco Insurance Co. Inc. on demand all sums paid on this loss, and in case suit is necessary to collect such reimbursement, I will pay such attorney's fees as the court may adjudge reasonable." Two checks were issued by the plaintiff, one for $156, dated November 5, payable to Pittman Motor Company, and one for $8, dated November 5, payable to the defendant, and these checks were placed in evidence, each being properly endorsed.

The defendant testified that he and an employee received personal injuries in the collision, which were not covered by the policy issued by the plaintiff. That he did not submit any claim to the plaintiff for personal injuries, but only submitted a claim for damage to his automobile and the towing charge which were covered by the policy. That he did not submit any claim against Cobb County for damages to his automobile, but only submitted a claim for the personal injuries received by him and his employee. That this claim was paid by the county on November 7.

G. H McMillan testified that he was county commissioner of Cobb County at the time the disbursements were made by the county. That the defendant approached him on November 4 about payment for his personal injuries, and that he authorized the settlement. He was not present when the money was paid to the defendant on November 7. That when he settled with the defendant, it "was in full settlement of all of his...