Natiional Ben Franklin Fire Insurance v. McGann

153 S.E. 362, 170 Ga. 573, 1930 Ga. LEXIS 194

• Court: Supreme Court of Georgia
• Decided: May 16, 1930
• Docket: No. 7728
• Status: Published

Opinion

Gilbert, J.

1. Where a plaintiff bases his suit to reform a contract on allegations which show that he has no right to maintain the suit, either as the contract was executed or as he seeks to have it reformed, it is subject to general demurrer. It does not convert such fatally defective petition into a good cause of action if such plaintiff bring the suit “for the use” of another. To maintain a suit for the use of another, there must be a legal right of action in the party bringing the suit. Nortwich Union Fire Insurance Society v. Wellhouse, 113 Ga. 970 (39 S. E. 397) ; Wright v. Continental Insurance Co., 117 Ga. 499 (43 S. E. 700) ; State of Georgia v. Bank of Quitman, 117 Ga. 849 (45 S. E. 236); Ross v. Glover-Ball Co., 156 Ga. 109 (118 S. E. 691); American Surety Co. v. County of Bibb, 162 Ga. 388, 391 (134 S. E. 100).

2. The allegations of the petition show that the plaintiff, acting at all times as agent for his wife, and not for himself, purchased a fire-insurance policy to cover property of the wife, in which plaintiff did not own any interest. The insurer executed and delivered a policy of insurance covering property not owned by plaintiff’s wife. Under such policy the company incurred no liability. If reformed as sought, the policy would insure property of the wife, and liability for loss would be to the wife and her mortgagee; no liability whatever to the husband. Hence, in neither case can the plaintiff husband maintain a suit.

3. The court erred in overruling the general demurrer.

4. The remaining grounds of demurrer need not be decided.

Judgment reversed.

All the Justices concur. Smith, Hammond, Smith & Bloodworih and W. L. Bryan, for plaintiff in error. W. Q. Henson and Graighead & Graighead, contra.