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BENEFIELD v. MALONE; and vice versa.
41517.
41518.
Assignment of cause of action under insurance policy. Fulton Civil Court. Before Judge Camp.
EBERHARDT, Judge.
1. The sending of a draft by an insurer for the amount claimed in a proof of loss which included an assignment of the cause of action, constitutes an acceptance of the assignment by the insurer.
2. Affidavits containing mere legal conclusions and allegations which would not be admitted into evidence present no issues of fact on a motion for summary judgment.
This case has previously been considered by the court in Benefield v. Malone, 110 Ga. App. 607 (139 SE2d 560) where the grant of a summary judgment on the ground that the plaintiff had assigned her cause of action to her insurer was reversed because no acceptance of the assignment had been proven. Since the decision in that case the defendant has moved again for summary judgment and has shown by deposition that before the filing of the original action the plaintiff's insurer through its agent sent a letter dated November 16, 1962, and a draft to the plaintiff in the amount sought in the proof of loss filed by the plaintiff, and it was stipulated and agreed that the draft was received and used on behalf of plaintiff. Plaintiff's action was filed April 10, 1963.
In opposing the second motion for summary judgment plaintiff submitted her own affidavit, dated June 15, 1965, and the affidavit of a vice-president of the insurer, dated June 9, 1965, in which it was asserted that Mrs. Benefield did not, in submitting the proof of loss containing the assignment, intend to assign her cause of action, and that the insurance company did not, in accepting the proof of loss and making payment thereunder, intend to purchase her cause of action. A loan receipt was executed between Mrs. Benefield and the company September 24, 1963, in which it was recited that for a consideration of $1.00 paragraphs 4 and 5 of the proof of loss (containing the assignment) were canceled.
To the order which overruled the motion of the plaintiff to dismiss the motion for summary judgment of defendant, granting the defendant's motion for summary judgment and dismissing plaintiff's petition plaintiff excepts.
In a cross bill the defendant excepts to the dismissal of her counterclaim after her motion for summary judgment had been granted.
1. The proof of loss filed by the plaintiff contained the following: "The insured hereby assigns and transfers to the company any claim or cause of action which the insured now has or may hereafter have to recover against any person or persons for damage resulting from said occurrence and loss above described . . ." As stated by the court when the case was last before it: "Without doubt the language of these paragraphs, if the 'proof of loss' containing them had been accepted by the insurer, would have effectuated an assignment of the cause of action." Benefield v. Malone, 110 Ga. App. 607, 613 (139 SE2d 500).
Thus the issue before us is whether the sending of a draft by an agent of the insurer to the insured in the exact amount claimed by the insured in the proof of loss constituted an acceptance on the part of the insurer effectuating an assignment of the cause of action which was outstanding and in effect on the date this case was filed.
2. Did the affidavits of Mrs. Benefield and the insurer's vice-president, together with the loan receipt by which the assignment of the cause of action was canceled, all subsequent to the filing of her suit, show the existence of a genuine issue of fact? We think not.
Neither the trial court nor this court is concerned with the credibility of the affidavits only with the matter of whether they show a genuine issue of fact to exist. General Cas. Corp. v. Carn, 103 Ga. App. 542 (120 SE2d 156); Bagley v. Firestone Tire &c. Co., 104 Ga. App. 736 (123 SE2d 179); Dempsey v. Langton, 266 Mich. 450 (253 NW 210); Harris v. Fawcett Publications, Inc. (DC, NY) 176 FSupp. 390.
Whether there was an intention of the parties that the cause of action be assigned must be determined from the terms of the contract and the circumstances surrounding its execution. The contract containing the assignment (the proof of loss) is definite, plain and certain. It was in that form when the insurer accepted it and paid the sum claimed, thus completely executing the contract. It therefore evidences a clear intention to assign. Recognizing that there had been an assignment, the parties sought, for a consideration of $1.60, to cancel it after the suit was filed. Now they seek by affidavits, asserting no more than conclusions as to what their intentions were or were not, to take the position that there was never an assignment of the cause of action.
There is certainly no ambiguity in the language used in the proof of loss which Mrs. Benefield submitted to the insurance company, which the company accepted and under which it paid her claim. It is "well settled that no construction is required or even permissible when the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation. In such an instance, the language used must be afforded its literal meaning and plain ordinary words given their usual significance, and this rule applies equally as well to insurance contracts as to any other contract." Wolverine Ins. Co. v. Jack Jordan, Inc., 213 Ga. 299, 302 (99 SE2d 95), and cases cited. "The terms of the agreement between the parties being unambiguous, the court did not commit error in excluding testimony of the secretary and treasurer of the defendant as to what was his intention when signing the agreement with respect to a matter referred to therein." Blakely Oil Inc. Co. v. Proctor & Gamble Co., 134 Ga. 139 (67 SE 389). And see Rowland v. Sumner, 201 Ga. 317 (2) (39 SE2d 655). Thus the assertions in these affidavits that there was no intention to assign the cause of action, being at complete variance with the plain, unambiguous language of the contract, would not be admissible on a trial of the case. Affidavits in support of or in opposition to motions for summary judgment must "set forth such facts as would be admissible in evidence" on the trial of the case. Code Ann. 110-1205. Since these are mere conclusions and would not be admissible they can and do raise no issue of fact. Varnadoe v. State Farm &c. Ins. Co., 112 Ga. App. 366. And see Planters Rural Telephone Co-op v. Chance, 108 Ga. App. 146 (132 SE2d 90); Studstill v. Aetna Cas. &c. Co., 101 Ga. App. 766 (115 SE2d 374).
The only issue before the court being that of whether there was an assignment of plaintiff's cause of action outstanding at the time her suit was filed, the court correctly concluded that there was, and the granting of the summary judgment was proper.
Mrs. Malone has submitted in argument or brief of authorities in support of her cross bill of exceptions and it is deemed abandoned.
Judgment affirmed on the main bill of exceptions; cross-bill dismissed. Nichols, P. J., and Pannell, J., concur.
Gambrell, Harlan, Russell & Moye, Sidney F. Wheeler, contra.
Ware, Sterne & Griffin, Richard H. Johnston, for plaintiff in error.
ARGUED SEPTEMBER 10, 1965 -- DECIDED SEPTEMBER 30, 1965.
Friday May 22 20:45 EDT


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