ROSSVILLE FEDERAL SAVINGS & LOAN ASSOCIATION
v.
INSURANCE COMPANY OF NORTH AMERICA.
Court of Appeals of Georgia.
*436 Frank M. Gleason, for appellant.
Milligan, Hooper & Harris, Powell, Goldstein, Frazer & Murphy, Edward E. Dorsey, Robert W. Patrick Jr., James H. Keaten, for appellee.
QUILLIAN, Judge.
1. The defendant's general demurrer will be treated as a motion to dismiss under the Civil Practice Act of 1966. Hill v. Willis,
2. (a) The provision of the policy under which the plaintiff contends the defendant is liable reads as follows: "The underwriter will indemnify the insured against court costs and reasonable attorneys' fees incurred and paid by the insured in defending any suit or legal proceeding brought against the insured to enforce the insured's liability or alleged liability on account of any loss, claim or damage which, if established against the insured, would constitute a valid and collectible loss sustained by the insured under the terms of this bond. Such indemnity shall be in addition to the amount of this bond. In consideration of such indemnity, the insured shall promptly give notice to the underwriter of the institution of any such suit or legal proceeding, at the request of the underwriter shall furnish it with copies of all pleadings and other papers therein, and at the underwriter's election shall permit the underwriter to conduct the defense of such suit or legal proceeding, in the insured's name, through attorneys of the underwriter's own selection. In the event of such election by the underwriter, the insured shall give all reasonable information and assistance, other than pecuniary, which the underwriter shall deem necessary to the proper defense of such suit or legal proceeding."
Although reference is made to the Rossville Fed. S. & L. Assn. v. Chase Manhattan Bank decision in
(b) This policy, like all contracts of "adhesion" (6A Corbin on Contracts 484, § 1446; Walnut Creek Pipe Distributors, Inc. v. Gates Rubber Co. Sales Division,
Here the contract provides for indemnity for expenses incurred "in defending any suit or legal proceeding brought against the insured to enforce the insured's liability or alleged liability." This language is not ambiguous and clearly covers only those situations of a defensive nature, not an affirmative suit by the insured regardless of the purpose intended.
The claim sets out that the insured filed a suit seeking to set aside and annul the cancellation of a security deed and has incurred certain described expenses and will incur further expenses in the prosecution of such action. There is nothing to show or intimate that the insured has incurred any expenses in defending against a suit or legal proceeding.
"A [complaint] may be dismissed on motion if clearly without *439 any merit; and this want of merit may consist in an absence of law to support a claim of the sort made, or of facts sufficient to make a good claim, or in the disclosure of some fact which will necessarily defeat the claim." 2A Moore's Federal Practice, § 12.08, p. 2271. Federal cases have expounded the proposition that, despite the liberal construction given a pleading, unwarranted deductions of fact are not admitted. Id., § 12.08, p. 2269; Ryan v. Scoggin, 245 F2d 54; Camero v. Kostos, 253 FS 331.
To infer that there was a counterclaim or other action brought against the plaintiff would be to engage in speculation and conjecture. For, the specific allegations of the instant claim are limited by their very terms to recovery of expenses incurred in the prosecution of a suit to set aside the cancellation of a security deed. Liberal construction of a pleading does not encompass the imputation or engrafting to a claim of a meaning not reasonably deducible or inferable from the explicit language of the pleading. The petition, insofar as it seeks expenses in the prosecution of a suit, reveals no grounds of recovery under the terms of the policy.
In so holding, we emphasize that this does not mean that there are no facts under which the plaintiff might recover. Merely, that under the specific facts of the claim the plaintiff could not recover and that in such circumstances, we will not infer or conjure up facts which might support a claim unless there is something to suggest that such facts exist. Here there are some additional facts which indicate the existence of a claim. The petition alleged that the defendant has paid only $1,152 on attorney's fees and expenses incurred to date in the sum of $4,771.90. Attached as an exhibit was a letter from an officer of the defendant insurance company which stated in part: "we are under no obligation to pay any legal fees other than those pertaining to the appellate work which we agreed to pay and have paid." Ordinarily, a partial payment on a disputed indebtedness does not, per se, admit liability. Drew v. Willingham Sash &c. Co.,
Furthermore, while a party may not admit liability, as a mere conclusion of law, where the facts positively show the absence of any liability (Atlanta & Lowry Nat. Bank v. Maughon,
Since the claim should not be dismissed unless it appears to a certainty that the plaintiff is entitled to no relief under any state of facts that could be proved, the trial judge erred in dismissing the petition.
Judgment reversed. Hall, P. J., and Pannell, J., concur.