Opinion
40041, 40042.
DECIDED JULY 2, 1963. REHEARING DENIED JULY 16, 1963.
Action to recover insurance premiums; summary judgments. Screven Superior Court. Before Judge Usher.
Smith, Field, Ringel, Martin Carr, Sam F. Lowe, Jr., for plaintiff in error.
Hilton Hilton, L. H. Hilton, contra.
1. (a) A definite, certain and unambiguous oral contract of settlement of a pending cause of action is a valid and binding agreement. Where the suit is pending, either of the parties to the case is entitled to a final judgment based on the terms of a valid and binding agreement of settlement so as to render certain the termination of the case.
(b) Where the motion for summary judgment, its supporting affidavits, and the pleadings would have authorized the grant of a summary judgment if the contract of settlement of the suit as asserted in the supporting affidavit were to remain uncontroverted and found to exist as a matter of law, the trial court did not err in overruling the defendant's motion to dismiss the motion for summary judgment.
2. Where genuine issues as to material facts are raised in opposing affidavits on a hearing for summary judgment, it is erroneous for a trial judge to grant the motion and enter judgment for the movant.
DECIDED JULY 2, 1963 — REHEARING DENIED JULY 16, 1963.
Each of the petitions in these two cases seeks the recovery of insurance premiums paid under the statutory remedy authorized by former Code § 56-519.
Prior to the trial on the merits, the two plaintiffs presented motions for summary judgment to the trial court, each of which was supported by an accompanying affidavit. Thereafter, the defendant filed in each case a motion to dismiss plaintiff's motion for summary judgment. The defendant filed counter affidavits in opposition to the motions for summary judgment, and an additional affidavit in support of their motion was filed by each of the movants.
On December 18, 1962, hearings were had upon the defendant's motion to dismiss the motion for summary judgment in each case and upon the merits of each of the motions for summary judgment. Thereafter, on January 7, 1963, the trial judge overruled the motions to dismiss the motions for summary judgment and found that there was no genuine issue as to any material fact in either of the cases and entered judgment in favor of each of the movants. Exceptions were brought by the defendant to the judgment of the trial court overruling its motion to dismiss the motion for summary judgment in each case and to the judgment of the court granting each of the motions for summary judgment and entering judgment for each of the movants.
1. The trial court did not err in overruling the defendant's motion to dismiss plaintiff's motion for summary judgment.
A definite, certain and unambiguous oral contract of settlement of a pending cause of action is a valid and binding agreement. Where the suit is pending, either of the parties to the case is entitled to a final judgment based on the terms of the agreement of settlement so as to render certain the termination of the case. Kapiloff v. Askin Stores, 202 Ga. 292 ( 42 S.E.2d 724); Coggins v. Edmonds, 209 Ga. 381, 383 (2) ( 73 S.E.2d 199); Boswell v. Gillen, 131 Ga. 310 ( 62 S.E. 187). In each case here the motion for summary judgment, its supporting affidavit and the pleadings would have authorized the grant of a summary judgment if the contract of settlement of the suit as asserted in the supporting affidavit were to remain uncontroverted and found to exist as a matter of law. Davis v. Holt, 105 Ga. App. 125, 131 (2) ( 123 S.E.2d 686).
2. The counter affidavits filed by the defendant in these two cases deny the existence at any time of a contract of the nature asserted in movants' supporting affidavits and declare that defendant had never made an agreement to settle separately with either of these movants. Although there had been an agreement of settlement entered into at one time by the defendant and others, the defendant contended that the agreement was executory, had been rescinded by mutual acts of the parties, and in any event had never applied to one of these plaintiffs (O'Barr in Case No. 40041). Further, the terms and nature of the agreement, which the defendant claims to have been rescinded as to all parties and which the movants assert to be in full force and effect as to them, are in numerous respects in direct issue as shown by the opposing affidavits of the parties. These conflicting averments present genuine issues as to material facts which are jury questions. Murph Machinery Co. v. Burke, 19 Ga. App. 351 (1) ( 91 S.E. 490). These and other genuine issues as to material facts raised by the opposing affidavits clearly show that neither of these cases is a proper one for an entry of summary judgment. The trial judge erred in granting the motion and in entering judgment for the movants in these cases. See Code Ann. Ch. 110-12 and Bagley v. Firestone Tire c. Co., 104 Ga. App. 736 ( 123 S.E.2d 179).
The judgment of the trial court granting the motion for summary judgment and entering judgment in favor of each of the movants in these two cases is.
Reversed. Carlisle, P. J., and Hall, J., concur.