Kennesaw Life & Acc. Ins. Co. v. Flanigan, s. 42781-42782
| Decision Date | 19 May 1967 |
| Docket Number | No. 3,Nos. 42781-42782,s. 42781-42782,3 |
| Court | Georgia Court of Appeals |
| Parties | KENNESAW LIFE & ACCIDENT INSURANCE COMPANY v. Nina R. FLANIGAN. KENNESAW LIFE & ACCIDENT INSURRANCE COMPANY v. T. E. FLANIGAN, Sr |
Syllabus by the Court
The amended petitions failed to state a cause of action, and the trial judge erred in overruling the renewed general demurrers.
On the previous appearance of these cases this court held that the petitions failed to state a cause of action because the representations upon which the actions were predicated were promises and conjectures as to future acts and events. Kennesaw Life & Accident Insurance Company v. Flanigan, 114 Ga.App. 510, 151 S.E.2d 881. Before final judgment in the court below each plaintiff amended by stating that the subject matter of the contract as delivered was not as agreed upon, being entirely different from that represent to the plaintiff and which the plaintiff believed he or she was purchasing, and that the representations were made for the purpose of inducing the plaintiff to enter into an investment program contract with no intention on the part of the defendant to fulfill such promises. The trial judge overruled renewed general demurrers, and the defendant has again appealed to this court.
Jones & Kemp, Charles M. Jones, Hinesville, for appellant.
L. H. Hilton, Sylvania, for appellee.
Construing the petitions as amended against the pleaders, the amendments as above stated only serve to emphasize the fact, as shown by the original petitions, that whatever representations were made preceded the execution of an application form, and were used as an inducement to each of the plaintiffs to execute and deliver to the defendant an application or subscription to what each plaintiff believed was an investment program. The petitions are still silent as to any fraud perpetrated by the defendant which prevented either plaintiff from ascertaining the contents of the application form which he or she signed, and also silent as to any difference in what the application form called for and what was actually delivered, as distinguished from what the agent represented each plaintiff would receive upon executing the application, and what was actually delivered. From aught that appears, the plaintiffs received contracts in accordance with their applications. Under these circumstances the petitions show no actionable fraud and thus fail to state a cause of action. See Skene v. Jones, 111 Ga.App. 615, 142 S.E.2d 412.
The plaintiffs rely mainly upon the rules recognized and applied in Bankers Fidelity Life Insurance Company v. Morgan, 104 Ga.App. 894, 897, 123...
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