Kennesaw Life & Acc. Ins. Co. v. Flanigan, s. 42781-42782

CourtUnited States Court of Appeals (Georgia)
Citation115 Ga.App. 818,156 S.E.2d 219
Decision Date19 May 1967
Docket NumberNo. 3,Nos. 42781-42782,s. 42781-42782,3

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.

JORDAN, Presiding Judge.

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, ...

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4 cases
  • Public Sav. Life Ins. Co. v. Wilder, 45842
    • United States
    • United States Court of Appeals (Georgia)
    • 7 de maio de 1971
    ...Saddler v. Cotton States Life and Health Ins. Co., 101 Ga.App. 866, 870, 115 S.E.2d 398; Kennesaw Life & Accident Ins. Co. v. Flanigan, 115 Ga.App. 818, 156 S.E.2d 219, and he should be bound by his representations therein which became the basis for the issuance of the Page 539 When the app......
  • Perkins v. Andrews, 42759
    • United States
    • United States Court of Appeals (Georgia)
    • 19 de maio de 1967
    ...No. 42759. Court of Appeals of Georgia, Division No. 3. May 19, 1967. Rehearing Denied June 6, 1967. Certiorari Denied July 14, 1967. [115 Ga.App. 818] Page 127 Smith, Cohen, Ringel, Kohler, Martin & Lowe, Meade Burns, Robert W. Beynart, H. A. Stephens, Jr., Atlanta, for appellant. Swift, C......
  • Flanigan v. Kennesaw Life & Accident Insurance Company, s. 43281
    • United States
    • United States Court of Appeals (Georgia)
    • 18 de janeiro de 1968
    ...See Kennesaw Life & Accident Ins. Co. v. Flanigan, 114 Ga.App. 510, 151 S.E.2d 881; Kennesaw Life & Accident Ins. Co. v. Flanigan, 115 Ga.App. 818, 156 S.E.2d 219. The present appeal is controlled by the decision in 114 Ga.App. 510, 151 S.E.2d 881, Judgment affirmed. HALL and J. KELLEY QUIL......
  • Pennsylvania Life Ins. Co. v. Hall, 56594
    • United States
    • United States Court of Appeals (Georgia)
    • 30 de outubro de 1978
    ...135 Ga.App. 745, 218 S.E.2d 914. 2. This case is controlled by the holding of this court in Kennesaw Life &c. Ins. Co. v. Flanigan, 115 Ga.App. 818, 156 S.E.2d 219, where, under virtually identical facts and pleadings, this court held that the appellees " . . . received contracts in accorda......

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