Kurtz v. Parker Plumbing & Heating Co.
| Decision Date | 13 June 1968 |
| Docket Number | No. 43415,No. 1,43415,1 |
| Citation | 162 S.E.2d 755,118 Ga.App. 130 |
| Parties | Joseph L. KURTZ v. PARKER PLUMBING & HEATING COMPANY |
| Court | Georgia Court of Appeals |
SYLLABUS BY THE COURT
The subrogation agreement in this case was not an assignment of the insured's cause of action for the negligent fire damage to his property, and the court erred in ruling that the agreement was an assignment of the cause of action and that the present action by the insurance company in the name of the insured for its own use was not maintainable, and in rendering a summary judgment in favor of the defendant in the action.
Woodruff, Savell, Lane & Williams, Lawson A. Cox, Atlanta, for appellant.
Hurt, Hill & Richardson, James C. Hill, Bonneau Ansley, Jr., Atlanta, for appellee.
The appeal in this case is from the court's judgment granting defendant's motion for a summary judgment. The theory on which the court granted the motion is that the cause of action had been assigned to the Northern Insurance Company and that this action instituted by the insurance company, for its use, in the name of the owner of the property insured under a fire insurance policy, allegedly damaged by fire by reason of the alleged negligence of the defendant, was not maintainable due to the alleged assignment of the cause of action to the insurance company before the filing of the action.
1. We think that the court erred in granting the defendant's motion for a summary judgment. The trial judge evidently based his ruling on a two-judge case, that of Keen v. Lumberman's Mutual Insurance Company, 60 Ga.App. 864, 5 S.E.2d 379. We do not agree with the ruling in that case and refuse to follow it. But assuming only for the sake of argument that the ruling in the above case is correct, the subrogation clause in the instant case is fuller and more elaborate than in the Keene case, and, when considered as a whole, is susceptible to but one construction and that is that the intention of the insured in this was not to assign his cause of action but to grant to the insurance company the right to be subrogated to the insured-owner's rights in the premises. The subrogation agreement in this case is as follows: 'Received of The Northern Insurance Company, the sum of Twelve-Thousand Seven Hundred Seventy Three Dollars and Sixty Seven Cents (12,773.67) in full settlement of all claims and demands of the undersigned for loss and damage by fire...
To continue reading
Request your trial
-
Southeast Transport Corp. v. Hogan Livestock Co., Inc.
...as that which appeared in those cases. A different result would obtain if the language had been like that in Kurtz v. Parker Plumbing & Heating Co., 118 Ga.App. 130, 162 S.E.2d 755, reversed in 225 Ga. 31, 165 S.E.2d 2. The allowing of some repetition in the examination of a witness on dire......
-
Liberty Mut. Ins. Co. v. Clark
...(1976); Wrightsman v. Hardware Dealers Etc. Ins. Co., 113 Ga.App. 306, 147 S.E.2d 860 (1966); see also Kurtz v. Parker Plumbing & Heating Co., 118 Ga.App. 130, 162 S.E.2d 755 (1968), revd. 225 Ga. 31, 165 S.E.2d 729 (1969). In that event the agreement would have been unenforceable because "......
-
Kelley v. Blue Line Carriers, LLC, A09A1070.
...Imperiale is factually distinguishable from the one in the instant case. See id. at 427, 370 S.E.2d 494; Kurtz v. Parker Plumbing, etc., 118 Ga.App. 130, 131(1), 162 S.E.2d 755 (1968), which was reversed by the Supreme Court of Georgia in Parker Plumbing, etc. v. Kurtz, 225 Ga. 31, 165 S.E.......
-
U.S. Fidelity & Guar. Co. v. J. I. Case Co.
...S.E.2d 807 (1979). Accord Parker Plumbing & Heating Co. v. Kurtz, 225 Ga. 31, 165 S.E.2d 729 (1969), rev'g Kurtz v. Parker Plumbing etc., Co., 118 Ga.App. 130, 162 S.E.2d 755 (1968); Imperiale v. Pollard, 187 Ga.App. 427, 370 S.E.2d 494 2. Next, appellants contend that even if Collins did a......