Service Fire Ins. Co. v. Powell

• Decision Date: 26 November 1943
• Docket Number: 30057.
• Citation: 27 S.E.2d 896,70 Ga.App. 213
• Parties: SERVICE FIRE INS. CO. v. POWELL.
• Court: Georgia Court of Appeals

27 S.E.2d 896

70 Ga.App. 213

SERVICE FIRE INS. CO. v. POWELL.

No. 30057.

Court of Appeals of Georgia, Division No. 2.

November 26, 1943

An insured, agreeing with automobile collision insurer to present promptly and prosecute diligently insured's claim, pledged by him to insurer as security for loan against railroad company for damage to automobile as result of collision with train, and appointing insurer's agent as insured's agent to collect, prosecute, compromise, or withdraw such claim, was guilty of breach of contract with insurer in settling and compromising claim and hence liable to insurer for amount loaned.

The Service Fire Insurance Company brought suit against C. Frank Powell to recover $377.61 which the company alleged the defendant owed to it by reason of facts alleged in the petition. The plaintiff alleged that it issued to the defendant a policy of insurance wherein it agreed to pay to the defendant as the insured all damages, less $50, to a described Ford Coupe automobile caused by a collision; that on March 25, 1940, there was a collision between this automobile and a train of the Atlanta, Birmingham and Coast Railroad Company whereby such automobile was damaged in the sum of $377.61, plus $50, which the defendant represented to the plaintiff was caused by the negligent and careless operation of the train by the employees of the railroad company; that on March 28, 1940, the plaintiff advanced as a loan to the defendant the sum of $377.61, taking from the defendant the following agreement designated a "loan receipt," to wit: "Received from the Service Fire Insurance Co. (Hereafter referred to as 'Company') the sum of Three Hundred seventy seven and 61/100 Dollars 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, 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 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 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 hereby agrees to promptly present and, if necessary, to commence enter into and prosecute suit against such person or persons, corporation or corporations or other parties, through whose negligence or other fault the aforesaid loss was caused, or who may otherwise be responsible therefor, with all due diligence, in his, its or their own name. In further consideration of said advance, the undersigned hereby guarantee(s) that he, it or they are the owner(s) of said property and entitled to recover upon said claim for loss or damage thereto, and hereby appoint(s) the managers and/or agents of the said 'Company' and their successors severally, his, its or their agent(s) and attorney(s)-in-fact, with irrevocable power, to collect any such claim or claims, and to begin prosecute, compromise or withdraw in his, its or their name, but at the expense of the said 'Company' any and all legal proceedings that the said 'Company' may deem necessary to enforce such claim or claims, and to execute in the name of the undersigned, any documents that may be necessary to carry the same into effect for the purposes of this agreement. Any legal proceedings are to be under the exclusive direction and control of said 'company.' The property hereinabove set forth is as follows: One 1940 Ford Coupe Motor No." The plaintiff also alleged that although the defendant in the above instrument agreed to promptly present his claim against the person or corporation as a result of whose negligence the damage to the automobile insured with the plaintiff was caused and to prosecute it with due diligence and also...