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Action for fraud. Fulton Civil Court. Before Judge Camp. February 5, 1960.
Where a plaintiff seeks to recover from a defendant because of alleged fraudulent misrepresentations, and there is no fiduciary relationship between the parties, if the only alleged misrepresentation is as to law or as to a matter of law no action able fraud is set forth.
A companion case to the case sub judice was previously before this court. In that case the plaintiffs sued the defendant on the policy of insurance and the judgment of this court affirming the judgment of the trial court finding for the plaintiffs was reversed by the Supreme Court. See Fire & Casualty Ins. Co. of Conn. v. Fields, 94 Ga. App. 272 (94 S. E. 2d 113), 212 Ga. 814 (96 S. E. 2d 502), and 95 Ga. App. 225 (97 S. E. 2d 556). In the present case the plaintiffs seek to recover, not on the policy, but because of the defendant's agent's misrepresentations to them that they had coverage under the policy when in fact no such coverage existed.
Under the decision of this court in Sherwin-Williams Co. v. St. Paul-Mercury Indem. Co., 97 Ga. App. 298, 299 (102 S. E. 2d 919), the petition was fatally defective, and to paraphrase the language of Judge Quillian, now Justice Quillian, in that case: When the defendant's agent allegedly advised the plaintiff, with whom no fiduciary relationship existed, that they were protected from loss under the provisions of the fire insurance policy, he was expressing an opinion of law and this would not constitute actionable fraud. National Life & Accident Ins. Co. v. Parker, 67 Ga. App. 1, 8 (19 S. E. 2d 409); Hart v. Waldo, 117 Ga. 590 (43 S. E. 998); Claxton Bank v. Smith, 34 Ga. App. 265 (129 S. E. 142); Bernstein v. Peters, 69 Ga. App. 525, 534 (26 S. E. 2d 192); Christopher v. Whitmire, 199 Ga. 280, 283 (34 S. E. 2d 100); Howard v. Georgia Home Ins. Co., 102 Ga. 137 (29 S. E. 143); Bankers Health & Life Ins. Co. v. Givens, 43 Ga. App. 43, 50 (157 S. E. 906). Accordingly, the judgment sustaining the general demurrer must be affirmed.
Hurt, Gaines, Baird, Peek & Peabody, J. Corbett Peek, Jr., contra.
Sidney I. Rose, for plaintiffs in error.
Saturday May 23 00:05 EDT

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