Opinion
45311.
ARGUED MAY 4, 1970.
DECIDED JULY 2, 1970.
Action on insurance policy. Fulton Civil Court. Before Judge Tidwell.
Walter W. Calhoun, for appellant.
Lokey Bowden, Charles M. Lokey, for appellee.
The trial court erred in granting defendant's motion for summary judgment.
ARGUED MAY 4, 1970 — DECIDED JULY 2, 1970.
Plaintiff brought this action to recover under the terms of an insurance policy for the loss of a truck stolen from its premises.
Both sides filed motions for summary judgment. The trial court granted defendant's motion and plaintiff appeals.
The policy by its terms covered a theft loss to a consigned automobile which is defined as a "land motor vehicle ... held by the named insured for sale." The motor vehicle which is the subject of the controversy was stolen on June 21, 1969. In support of its motion defendant filed an affidavit of its adjuster which has two attachments. One of the attachments was a statement obtained during the course of investigating the loss by the adjuster from the president of the plaintiff corporation. In this statement, the president declared that the stolen truck had previously been procured under a "borrow on loan agreement" from International Harvester in Atlanta; that it was acquired for purposes of showing it to customers; that if he wanted to sell the truck, permission would have to be obtained from International Harvester; and that under the "borrow on loan" plan plaintiff corporation did not have title to the truck and it was not "for resale as such." The other attachment was a copy of a "motor vehicle loan agreement" between the plaintiff and International Harvester which in summary granted plaintiff the temporary use of the vehicle under certain conditions not pertinent to this inquiry. This agreement is completely silent on the subject of granting plaintiff any power of sale. Plaintiff in opposition submitted the affidavits of two officials of International Harvester and of its president which were to the effect that plaintiff was authorized to attempt the sale of the loaned vehicle to a purchaser at a price acceptable to plaintiff; and in the event of sale, plaintiff was required to notify International Harvester, assume the obligation of paying the dealer cost and taking title to the truck.
There is no dispute as to the existence of the policy or as to its terms with respect to a theft loss of a consigned motor vehicle. The trial court in its order granting defendant's motion stated that applying the rationale of our decision in Division 3 of Chandler v. Gately, 119 Ga. App. 513 (3) ( 167 S.E.2d 697), plaintiff was bound by the out-of-court statement of its president that the truck was not held for "resale"; and this evidence demands judgment for defendant. In Chandler, the rule of evidence that the testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague or equivocal was held applicable in a summary judgment proceeding. However, in this case, the evidence submitted has a different posture than in the Chandler case. Here the statement of the president obtained by the defendant's adjuster is not a part of plaintiff's case. The rule of construction of a party's testimony applied in Chandler does not extend to or include an out-of-court statement taken by an investigator. Tuggle v. Waller, 91 Ga. App. 721, 723 ( 87 S.E.2d 123); Atlantic C. L. R. Co. v. Hall, 114 Ga. App. 538 (1) ( 151 S.E.2d 914). In this litigation, the statement must be categorized as an out-of-court admission of a corporate party opponent made by its president inconsistent with its contention in the case. An admission by the president, its alter ego, is ordinarily admissible in evidence at trial if he speaks in the performance of his official duties relating to the transaction in controversy. This is clearly the case here. Baker v. Lowe Electric Co., 47 Ga. App. 259 (6) ( 170 S.E. 337). An admission is just evidence and the weight accorded it is a matter for jury determination. Phoenix Ins. Co. v. Gray, 113 Ga. 424 ( 38 S.E. 992). Accordingly, plaintiff on summary judgment is not bound by this inconsistent extra-judicial admission, provided of course there is other admissible evidence which would raise a factual issue.
Therefore, we must now consider whether there is any issue of material fact for jury determination. The affidavits of plaintiff which contain evidence that the stolen vehicle was being held by plaintiff for sale does raise an issue of fact. However, defendant contends that this evidence is not admissible, as it would add to the written loan agreement in violation of the parol evidence rule. We believe that the evidence of this apparent oral arrangement between plaintiff and International Harvester which granted plaintiff authority to sell the vehicle does not fall within the parol evidence rule. This evidence does not in any respect alter the written loan agreement. It is collateral to, independent of, and not inconsistent with the writing. Langenback v. Mays, 205 Ga. 706 ( 54 S.E.2d 401, 11 ALR2d 1221). Therefore, plaintiff's evidence would be admissible, and as a consequence there is a genuine issue of material fact as to whether the vehicle was being held for sale. The trial court erred in granting defendant's motion for summary judgment.
Judgment reversed. Quillian and Whitman, JJ., concur.