Opinion
14043.
MAY 21, 1942.
Complaint. Before Judge Humphries. Fulton superior court. November 28, 1941.
W. Neal Baird and Neely, Marshall Greene, for plaintiff in error.
J. Wightman Bowden and John R. Strother, contra.
1. "Trusts of every kind, not generally cognizable at law, are peculiarly subjects of equity jurisdiction." Code, § 108-117. Under this law the trustee is amenable to the court of equity for faithful administration of trust. Johns v. Johns, 23 Ga. 31; Dill v. McGehee, 34 Ga. 438.
2. "Any person having a claim against any trust estate for services rendered to said estate, or for articles or property or money furnished for the use of said estate, or any claim for the payment of which a court of equity would render said estate liable, may collect and enforce the payment of such claim in a court of law." Code, § 108-501.
3. The plaintiff's demand in the instant case relates not to faithful administration of a trust; but on the allegations and prayers of the petition it is a demand at law for a money judgment.
4. "Fraud renders contracts voidable at the election of the injured party." Code. § 20-502. In an action at law founded on breach of contract, the defendant may attack the contract in a court of law on the ground that it was procured by fraud. Barrie v. Miller, 104 Ga. 312, 315 ( 30 S.E. 840, 69 Am. St. R. 171).
5. Under application of the principles stated above, the bill of exceptions in the instant case was properly returnable to the Court of Appeals, which has jurisdiction of the case. The Supreme Court has not jurisdiction.
Transferred to the Court of Appeals. All the Justices concur.
No. 14043. MAY 21, 1942.
E. E. Dooley made a claim for damages as resulting from injury to his arm near the wrist, caused on April 2, 1941, by slipping and falling to the floor in an office building in the City of Atlanta. He submitted to an x-ray examination by the physician of the liability insurance carrier for the owner of the building. The examination revealed injury that in the opinion of the physician would require an operation. The claim for damages was settled by the insurance company for $355, for which the company issued two checks, one for $180 payable to Dooley, and the other for $175 payable to Dooley and the physician. The latter was intended to cover the cost of operation and hospitalization to be supplied by the physician. Dooley indorsed this check to the physician. The operation was not performed, nor was hospitalization supplied, but the physician returned the check to the insurance company, after which he died. On May 20, 1941, Dooley brought suit against the owner of the building and the insurance company, to recover the amount of the check, on the basis of the failure of the physician to perform the operation and supply hospitalization, and an implied trust resulting from the circumstances in which the check was returned to the insurance company. The defendants interposed a general demurrer, and filed an answer alleging, among other things, fraud on the part of Dooley in that he falsely represented that the injury was the result of a fall in the building, whereas it was the result of a past occurrence, and by such representation he deceived the physician, and accomplished the settlement; that after indorsing the check to the physician Dooley went to the physician and told him he did not need any operation, and proposed that they "split" the $175; and that the physician thereupon returned the check to the insurance company. In the circumstances it was prayed that relief be denied to the plaintiff and that the insurance company have judgment against the plaintiff for $180, the amount of the check. The plaintiff moved to strike all allegations in the answer relating to fraud. The judge overruled the demurrer to the petition, and sustained the motion to strike the allegations of the answer relating to fraud. The defendants excepted.