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KENNESAW LIFE & ACCIDENT INSURANCE COMPANY v. FLANIGAN (two cases).
42781.
42782.
Action on insurance policy. Evans Superior Court. Before Judge Durrence.
JORDAN, Presiding Judge.
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 &c. Ins. Co. v. Flanigan, 114 Ga. App. 510 (151 SE2d 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 represented 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.
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 SE2d 412).
The plaintiffs rely mainly upon the rules recognized and applied in Bankers Fidelity Life Ins. Co. v. Morgan, 104 Ga. App. 894, 897 (123 SE2d 433), and Coral Gables Corp. v. Hamilton, 168 Ga. 182 (8) (147 SE 494), and similar cases. In the Bankers Fidelity case counsel conceded that former Code 56-519, which imposed a statutory liability, was inapplicable and controlling, and the case, which involved an insurance investment program similar to that shown in the present case, was decided on the basis of that statute. There appears to be no similar applicable provision under the current insurance law of this State. The general principles recognized and applied under the facts of the Coral Gables case do not require an affirmance of the ruling of the lower court in the present cases, in view of the deficiencies in the petitions as noted above. For further discussion of the distinctions between actionable fraud and other misrepresentations, see Vaughan v. Oxenborg, 105 Ga. App. 295, 298 (124 SE2d 436); Clinton v. State Farm Mut. Auto. Ins. Co., 110 Ga. App. 417, 420 (138 SE2d 687); Adamson v. Maddox, 111 Ga. App. 533, 535 (142 SE2d 313), Holbrook v. Capital Auto. Co., 111 Ga. App. 601 (142 SE2d 288), Skene v. Jones, 111 Ga. App. 615, supra, Cohen v. The Pullman Company, 243 F2d 725.
No cause of action being shown, the trial judge erred in overruling the general demurrers to the petitions as amended.
L. H. Hilton, for appellees.
Jones & Kemp, Charles M. Jones, for appellant.
SUBMITTED MAY 4, 1967 -- DECIDED MAY 19, 1967 -- REHEARING DENIED JUNE 6, 1967 -- CERT. APPLIED FOR.
Friday May 22 19:26 EDT


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