Bush v. Globe & Rutgers Fire Insurance

In September, 1920, the Globe & Rutgers Eire Insurance Company issued to ~W. J. Bush a fire-insurance policy for $10,500, which covered cotton in bales owned or held by the insured in trust or on commission or on joint account with others, or sold but not delivered, while contained in the “J. S. Bush warehouse in Colquitt, Ga.” Later the assured, desiring to borrow some money and pledge a part of the cotton stored, was required by the bank to take out another policy, which he did in the iEtna Insurance Company. This policy covered eleven bales of cotton, which was specifically identified by numbers. A fire occurred and 133 bales of cotton belonging to the insured, including the eleven bales named in the policy of the .¿Etna Insurance Company, were burned. As required by the terms of the Globe & Rutgers policy, the assured rendered to that company a sworn proof of loss, in which it was stated that the actual cash value of the property described in the policy, at the time of the fire, was $7,548.37, that the actual loss and damage by fire was $7,548.37, and that “insured claims under this policy $7,548.37, payment of which insured agrees to and will accept in full satisfaction and demand no more.” After the proofs of loss were submitted, the Globe & Rutgers Eire Insurance Company issued its draft on the Chemical National Bank of New York, payable to the order of W. J. Bush, Bainbridge State Bank, and Cowart & Dancer (the warehousemen), for $7,548.37, the full amount of damages stated in the proof of loss. The draft recites that this payment, “evi*433deneed by proper indorsement hereof, constitutes full satisfaction of all claims and demands for loss and damage by fire” to the property insured, and further recites that “said policy is hereby cancelled and surrendered.” On the back of the draft is the following : “In consideration of the sum hereby! paid, all claims and demands whatsoever against the Globe & Rutgers Fire Insurance Company connected with thé within mentioned claim for loss or damage are released, compromised, settled, and forever discharged.” This was signed by W. J. Bush, Cowart & Dancer, and Bainbridge State Bank. The draft was then presented and paid. Thus the matter stood when the plaintiff brought suit on the policy issued by the Globe & Rutgers Fire Insurance Company to recover for a part of the loss of the eleven bales specifically insured by the ¿Etna Insurance Company. The defendant denied any liability on the policy and pleaded accord and satisfaction, setting up what is stated above as to the proofs of loss, the issuance of the draft in full settlement of the loss claimed, and a complete release by the assured of all claims under said policy by reason of said fire. These pleas were supported by proof, and the plaintiff was not entitled to recover. That the full amount claimed by the insured in his proof of loss was paid' and that-the money was retained stands uneontradieted. It is not denied that the insured signed the proof of loss and the release, and indorsed the draft. It does not appear that at the time he signed these papers, or any one of them, there existed between the insured and the representative of the insurance company any “fiduciary or confidential relations,” or that he was induced to sign these papers by some “misleading device or artifice amounting to actual fraud.” Twyman v. Avera Loan & Investment Co., 23 Ga. App. 136 (98 S. E. 239). See Civil Code (1910), § 4329; Bass Dry Goods Co. v. Roberts Coal Co., 4 Ga. App. 520, and cases cited on page 521 (61 S. E. 1134); Elrod v. Kiser Co., 13 Ga. App. 471 (79 S. E. 375); Ryan v. Progressive Retailer Pub. Co., 16 Ga. App. 83 (84 S. E. 834); Redmond v. Atlanta & Birmingham Air-Line Ry., 129 Ga. 133 (58 S. E. 875). The facts in the cases cited by the plaintiff in error easily differentiate them from the case under consideration.

Whether or not the plaintiff could have recovered from the defendant any part of the loss occasioned by the destruction of the eleven bales of cotton had he included this claim in his original *434proof of loss and made no settlement of his loss with the Globe & Rutgers Fire Insurance Company, we are not now called upon to decide.

The court properly directed a verdict for the defendant.

Judgment affirmed.