Yeargin v. Farmers Mut. Ins. Ass'n of Walker County, Georgia

• Decision Date: 21 April 1977
• Docket Number: No. 53566,No. 3,53566,3
• Citation: 142 Ga.App. 76,234 S.E.2d 856
• Parties: Ruby YEARGIN et al. v. The FARMERS MUTUAL INSURANCE ASSOCIATION OF WALKER COUNTY, GEORGIA
• Court: Georgia Court of Appeals

Page 856

234 S.E.2d 856

142 Ga.App. 76

Ruby YEARGIN et al. v. The FARMERS MUTUAL INSURANCE ASSOCIATION OF WALKER COUNTY, GEORGIA.

No. 53566.

Court of Appeals of Georgia, Division No. 3.

April 21, 1977.

McCamy, Minor, Phillips & Tuggle, Joseph T. Tuggle, Jr., John P. Neal, III, Dalton, for appellants.

Bolling & Bolling, Walter H. Bolling, Dalton, for appellee.

MARSHALL, Judge.

This appeal arises out of the grant of summary judgment in favor of the appellee, plaintiff below. The appellants enumerate as the sole error the grant of summary judgment.

The facts show that on April 11, 1975, Mrs. Yeargin purchased a house and lot from a Mr. and Mrs. Tidwell, on which there was a loan payable to the second appellant, Mr. Moore. There was a fire insurance policy in effect issued by Farmers Mutual in the amount of $6,000, payable to Mr. Moore. On the date of the purchase, Farmers Mutual was notified of the sale, and appellee reissued the policy in the same amount to Mrs. Yeargin and Mr. Moore. The policy was mailed to Mrs. Yeargin, but was never received by her. That policy contained a clause which prohibited Mrs. Yeargin from obtaining additional insurance on the property without the consent of an appropriate officer of the insurer. On April 24, 1975, Mrs. Yeargin obtained a second policy of fire insurance with Cotton States Mutual Insurance Company, in the amount of $7,500. On May 9, 1975, a fire occurred at the house, resulting in substantial damage. Mrs. Yeargin obtained three estimates on repairs, one for $3,059.32, one for $3,577.75 and the third for $8,195.26. Mrs. Yeargin submitted these estimates to Farmers Mutual and that association accepted the lowest bid and issued Mrs. Yeargin a check for $3,009.52, the lowest bid less $50 deductible. Mrs. Yeargin also submitted bids to Cotton States and was paid $3,577.75 for the same loss. After making payment to Mrs. Yeargin, Farmers Mutual became aware of the double insurance coverage and made demand for return of its payment. Upon refusal by Mrs. Yeargin, the present complaint was filed. In support of its motion for summary judgment, Farmers Mutual filed a stipulation of facts establishing basically the above facts. It also presented an affidavit showing that no officer or employee of the association was aware of the second policy of insurance on the property prior to payment based upon its own policy of insurance.

Farmers Mutual argues that as a matter of public policy and based upon a now-repealed statute, the second policy of insurance upon the same risk voided the first policy in the absence of the consent of Farmers Mutual to the second policy. Alternatively, Farmers Mutual argues that the taking of the second policy breached the terms of the contract and rendered the association non-liable for any payment for a loss of property under the breached contract of insurance. Mrs. Yeargin argues that the public policy and statutory bases for the argument of Farmers Mutual are no longer extant, and that her rights are governed by simple contract law. Her argument continues that, inasmuch as she had never seen the policy issued by Farmers Mutual, she could not be bound by the terms of that policy, and had not consented nor could she consent to be bound by contractual limitations that she had never seen. Held :

1. The simple answer to her contention is that Mrs. Yeargin adopted the contract when she ratified and accepted the terms of the contract of insurance issued by Farmers Mutual. She invoked the coverage and accepted payment of $3,009.52. Having elected to seek the fruits of the policy, she is bound by...