*1 February 3, Submitted Decided 12, 1975. March Jr., Hylton & B. for Dupree, Dupree, McDonald appellant. Darden, W. District B.

George Wayne Attorney, Assistant Phillips, Attorney, District for appellee. COMPANY, 49811. COOK-DAVIS FURNITURE INC. v. DUSKIN.

Webb, Judge. Inc.,

Cook-Davis an action Company, brought Frank against seeking Duskin under a retail recovery instalment sales for contract the purchase price of furniture described in the contract. A the contract, copy attached to the in- complaint, showed that property surance requested was and that buyer, premium for the property insurance added to the was charges listed answered, contract. The defendant execution of contract that he had admitting made 5,6 and set a payments, up defense in paragraphs and 7 of his answer as follows:

"In further response to complaint plaintiff, alleges defendant as This follows: defendant executed an sales contract with Cook-Davis Furniture Inc., which Company, said instalment contract called for pay for insurance property $180.54 on the set property 25, forth in sales executed said contract November 1969. alleges Defendant that he specifically requested property to be contract, insurance obtained a part that he 'X’ placed that section of the indicating contract his election obtain part insurance of the property he his in that section placed signature of the contract entitled 'Insurance Statement’ indicating his understanding part insurance was property contract which he paid $180.54. defendant,

“That on said contract and with relying the understanding that Cook-Davis Furniture Company, its credit as a part Inc., included had home, his removed to furniture to be him, allowed 1969, furniture of November night on the where fire destroyed by on the sales described All of defendant. the home burned *2 reuse. repair beyond furniture was burned contract, his pursuant that alleges "Defendant January due on have been would first instalment of the contract part that as further shows 1970. Defendant have Plaintiff should plaintiff. the title remained insurance $4,250 his property from reimbursed been to a be entitled would not and plaintiff company judgment.” to be the materials appeal designated

The notice of recited that no court and of the trial the clerk up by sent only up. to be sent the evidence was transcript the judgment transpired we have of what knowledge judgment a defendant-appellee to the the court granting verdict, judgment from which notwithstanding court. That judgment to this appeals plaintiff-appellant reads as follows: Sales suit on an Instalment brought

"Plaintiff by is governed Furniture. The transaction Contract for Act,’ Sales and Home Solicitation 'The Retail Instalment checked et The defendant seq. Ga. Code 96-901 a desire for indicating in the contract appropriate option charged covered insurance and was the furniture to be contract computation. therefor premium a the furniture was offered that "The defense was not have the defendant should fire and that destroyed by of the contract. provision due to the insurance pay the sale oc- indicated that at the trial "Evidence at a time and holiday to a weekend just curred prior normally plaintiff the Finance to whom Company when for was closed contracts discounted its retail officer plaintiffs for these reasons the weekend and not be the furniture could to defendant that explained office was Company him until the Finance delivered to activate that could company open only employees discussion, After some coverage. insurance requested evidence, the defendant assured according plaintiffs aby covered adequately he officer of that was plaintiff he would the insurance policy, homeowner waive weekend, over the protection that he would assume the attendant risk of Further to plaintiffs loss. according evidence, the plaintiffs officer authorized after such defendant was made. waiver weekend, "During the the furniture was holiday by fire. destroyed

"Defendant’s at the trial contradictory evidence was to that of indicated no plaintiff whatsoever of the contract was mentioned or him. agreed defendant a

"The made motion at the close of the plaintiffs case and at evidence the conclusion of the both for a directed verdict on sides the basis contract, waiver of the insurance provisions of the even if made, illegal void and that there being writing written contradicting terms of a judgment for the defendant was demanded. court

"The reserved submitted to the jury for verdict special whether there was in fact a waiver *3 of the as claimed by insurance The plaintiff. found there jury was a waiver. The defendant now raises the questions same motions for n.o.v. . . by judgment issue, of study

"After the this court has concluded the motion of the defendant be granted. must The Act under rights the of the are parties to be determined (Ga. requires that the in writing be 96-903), and, moreover, § Code that Act prohibits 96-913). (Ga. § the Code provisions thereof Consumer of the legislation under here type simply consideration modifies civil law other and it general fields is no say answer to that a contract may written be modified aby new agreement oral under certain or that circumstances the Uniform Commercial Code authorized waiver of a provision. 209(4); § sales contract See Ga. Code 109A-2 — Graham, Geiger 771, 775. Finance Co. v. 123 Ga. The Act in forbids an oral or question modification waiver of an instalment sales contract governed by its terms.

"A delay in the insurance not been activating having the provided in none can now provided. on the motion "Judgment rendered defense mo.v. it ordered take accordingly plaintiff that

267 with the discharged that defendant be recovery costs.” "We, the find in jury as verdict reads follows: jury did waive his the the defendant

favor of plaintiff to "waiver” was jury This finding by rights.” testimony obviously upon finding based surrounding circumstances plaintiff order, judge’s the trial as shown property, And the trial based his jury. judge found to be true law, compelled which in opinion his questions on The contract does not finding. him disregard jury’s requested by recite when It is silent as this. Held: will become effective. deciding not consider an Ordinarily 1. we would sustaining the trial court’s of a upon enumeration of error verdict notwithstanding for judgment motion including of the proceedings, of a transcript absence Services, Ga. App. Berrien v. Avco Financial evidence. 337). Here, however, the facts as to a the defendant have been appellee defense set up jury him a special finding determined adverse to testimony judge’s recited trial upon a conflict order, judgment trial the motion for judge granted and the law, on a matter of the verdict based notwithstanding these In circumstances finding. irrespective necessary is not a decision transcript the evidence the case. Code, Commercial Code 109A-2 —209

2. Uniform (4) or attempt at modification "Although provides of subsection satisfy requirements does not rescission (3) (2) the statute writing] [because not [because it operate can as a waiver.” frauds is not satisfied] However, and Home The Retail Instalment Solicitation (Ga. amended; Ann. Ch. Act L. 659 as p. Sales 96-9) Graham, v. Finance Co. Geiger here. Cf. governs *4 521). 13 that Act Ga. 775 Section (Code 96-913) § that waiver of the "Any Ann. provides void,” of this Act shall be unenforceable and (Code (a)) (a) Ann. that provides § and 3 96-903 section and writing shall be retail instalment contract "Every to the provisions prior as essential completed shall be to all supplied.) . . .” (Emphasis thereof signing 268 only here is whether question provisions for If so, are of the provisions”

insurance "essential contract. (§ (a) Act; to be they required writing are (a)), § and oral Ann. 9-903 agreement in- surance would not be seller procured by the as provided § the contract is "unenforceable void.” 13 of 96-913). (Code § Act Ann. The furniture contends company (Code § (g) that since of the Act Ann. (g)) 96-903 provides that the buyer procure insurance, can his own then procurement insurance the seller is an "essential,” rather than con- "optional,” provision tract and need not be in writing.

This line of must be reasoning rejected. Virtually all terms an instalment contract may "optional” until agreed upon by buyer seller, including purchase down price, payment, monthly amount of payments, etc. But to, once are selected and goods terms agreed former "optional” pro- matters become essential visions the contract. Here there a separate is "box” on the form contract stating "Property Insurance (in maybe obtained either part the credit which case Transaction) cost set is forth in the Statement of fromor person your choice.” Below this statement appears "I following: request Insurance,” decline Property [X] [ ] signed by buyer. In the "Statement Transaction” appears tax, amount of the sales cash price, down payment balance, and unpaid and the cost of the credit life insurance and property insurance. The cost of the life are added together and listed as "Total Other is Charges,” which sum added into the Financed,” "Amount upon which a Charge” "Finance is calculated, which in turn is added into the "Total of Payments.”

It is hence our view once a retail reduced writing signed, pro- all its visions must be regarded with- provisions” "essential (a) §of meaning of the Act. It view is also our that since the contract to state fails when the insurance would effective, become the contemplated effective date one must be which would afford at time the protection risk of loss shifted to the buyer, purpose insurance.

269 and unenforceable hold void we Accordingly, procured not be the insurance would agreement oral contract. for the written as provided seller by concedes that company apparently furniture 3. The un- is void and or "waiver” agreement if the oral recover. This is enforceable, it not entitled to then for credit correct, since defendant would entitled v. Auto Finance Co. of the insurance. Atlas amount 171). Fitz, (53 Accord,Bell v. Atkins, 91 SE2d 79 Ga. App. (66 108); & Merchants Farmers 84 220 SE2d Ga. App. (78 818); Home 122 SE2d v. 89 Winfrey, Bank Ga. (99 87); Hester, 393 SE2d v. 213 Ga. & Loan Assn. Bldg. Lamb, 217 359 v. Ga. Financing Corp. Consumers 101). Deen, J., Bell, J., Quillian, P. C. Judgment affirmed. Pannell, Marshall, JJ., P. Evans, Clark, concur. Stolz and J., dissents. February 12, 3,

Argued 1974 Decided October 13, Rehearing denied March for appellant. Duross Fitzpatrick, NeSmith, Barlow, for appellee. A. Newell W. Lonnie Evans, Judge, concurring.

I but to add opinion concur wish fully majority the following: furniture from purchased

Frank certain Duskin Furniture, Cochran, Georgia, making Inc. of Cook-Davis his note for the remainder. payment executing down for in the note executed was Included so $180.54 insurance. The agreed seller purchase No- p.m. Thursday, delivered at on property was 6:15 days fire two later. destroyed by vember and was balance, brought unpaid seller suit for that he had purchaser upon defended the ground purchased from cover destruction the seller insurance to it the trial appeared albeit at property, for which had neglected procure seller his had note. purchaser given follows equity, equity While this is not a case in (Code 37-113) maxim law and there is an equitable situation, which fits to wit: "When one of two innocent must persons suffer the act of a third he person, put who it in the the third power of inflict the person injury shall bear the loss.”

Here, fire one who set the is the third person act seller, whose caused the but the damage, failing to procure the insurance after charging purchaser *6 same, placed it in the of the third unquestionably power person injury, to inflict the and must bear consequently the loss.

The seller in suggests his brief that the purchaser had other collected, insurance on the property which he and ought this to operate as exoneration of seller for its failure to procure insurance.

First, let it be noted that the make no pleadings such contention and the of evidence is not transcript before this court. We can not decide upon cases the unsupported statements made in the briefs of Berrien counsel. v. Avco (194 Services, (1) 337). Financial 127 584 Ga. App. SE2d Next, there is rule in known as "the law collateral source rule” which in operates cases such as this. "Equity aids the vigilant, not the slothful.” v. 161 Clay, Raines Ga. (131 499). 574, 578 SE This principle appeared as far back as Western & Alabama R. v. (5), 74 Meigs, Ga. 857 wherein the railroad sought to reduce damages because deceased had the foresight life, insure his paying the out premiums pocket. his own Justice Lumpkin very sagely 868, reduces this argument to an at absurdity p. "If wit: recovery reduced, her could it thus be might be that, insisted where the husband’s life was insured for more than she was allowed to recover under the law as its value, actual cash could claim a company balance against family deceased, on the idea that killing of the husband father was a positive pecuniary benefit them.” Eberhardt discusses this Judge princi ple fully Pennsylvania Hill, Threshermen &c. Co. v. (148 283, 286-290 83), 113 Ga. App. of which gist is unless the money paid accepted extinguishment of all claims every kind and against others For au everybody, still be held liable. other may thorities on the Nashville C. collateral source rule see

271 959); Wachtel Miller, SE 120 Ga. Co. v. St. L. R. & Pless, (1) (163 v. 512); Story SE Leonard, 45 Ga. App. v. 407). (112 SE2d 100 Ga. Deen Judge Presiding I to state authorized am said above. in all concur Marshall Judge dissenting. Presiding Judge, Pannell, of facts and the I the statement with agree I agree cannot with 1 of but the opinion, Division Let us opinion. 2 of the in Division reached conclusions the Retail Instalment provisions some of the examine 13 of the Retail Act. Section Solicitation Sales and Home (Ga. Act L. Home Solicitation Sales Instalment and 96-913) 659, 673; "Any Ann. provides: p. and void.” Act shall be provisions unenforceable (a) of the 3, subsection Section (Emphasis supplied.) installment contract shall be

Act retail provides: "Every to all essential completed and shall be writing . . .” thereof prior signing in various This further subsections provides Section the Act to be in the therein just required by what done, with things certain must what *7 thereof instructions; g pro- and in Subsection detailed any "The under retail installment con- the con- vides: seller shall, after execution of days tract within to tract, to be delivered or mailed deliver or mail or cause address, or any policy policies at his buyer the aforesaid in to purchase the has agreed of insurance seller therewith, lieu certificate or connection or in thereof a . in Nothing Chapter certificates of such insurance.. this right procure shall or the of a impair abrogate of his own agent company from an selection,” "the in this Chapter term 'holder’ as used seller, the the seller has the assigned means retail unless of contract, in 'holder’ the such assignee which case means of contract at the time of the determination.” This Section § the in the Annotated Code as 96-903. Act is codified the act of the defendant The here is whether question in the to the insurance goods prior of taking effective, said insurance knowledge with that becoming loss the risk of assuming was not effective and loss, cover policy his depending upon family waiver of any provision amount to a this Act. (a) The contract case contained present recitation or statement that the insurance would become immediately, effective is there in any requirement nor the Act that such be case or that such a statement be therein, nor does Act that require any statement to the effective date of the insurance be stated order, contract. trial his judge, mis- apparently construed the as having contract provided therein instant So here, insurance. does the majority although is contrary this statement of facts that the contract did not for an provide insurance, effective date for the however, in the absence of any or requirement provision Act, requiring such a statement to be in the contract, contract, no waiver such provision even if such a waiver occurred a waiver the provisions Act as shown above. Section 13 of the Act only proscribes a provisions Act; waiver it has to do nothing with a of the provisions of the contract as drawn. As to waiver of provisions of sales contracts generally, § see (4), 109A-2 —209 a provision UCC. The majority here and the trial relied judge upon Graham, Finance Co. v. Geiger 123 Ga. 521) authority provision the sales

sections of the Georgia Commercial no ap- Code has a plication to contract under the Retail Instalment Home Solicitation Act. Sales There is no holding case the Act here governs legal various incidents of a contract of sale not specifically impliedly covered therein. I agree that the present gov- erned Act, but when there is no provision of the Act situation, covering then the general law outside the Act In must applied. Geiger case, Finance this court held that the contract there involved a was not negotiable instrument within the definition of Code 109A-3 —104 (1), and in referring said in opinion: "It contains purported *8 by waiver the buyer defense, of 'any counterclaim cross-complaint’ he could have against asserted the seller. This further goes than reiterating rights the the holder in due 'any course since defense’ would also presumably include infancy, incompetence, discharge bankruptcy, Code by contemplated of waiver type This not the etc. is to Rather, attempt impart it an § 109A-3 —112. Ann. oth- cannot which writing to negotiability effect of the in- 3 negotiable of an Article the test meet erwise not referred to there Section strument.” 112, which (4), but was Section 109A-2 —209 109A-3 — not instrument "The provides: negotiability (e) the benefit to waive purporting a term by... affected of the or protection the advantage law intended for any can that case that ruling no There was obligor.” UCC of the held that the possibly provisions be no to contracts can have application to sales relating Sales Solicitation the Retail Instalment Home under legal but Act, nothing contain and which sections a sale not controlled arising incidents from Act. provision of that (b) insists, however, because Section Appellee 96-903) (Code retail "Every Ann. provides: of the Act be in and shall writing contract shall the provisions prior essential completed as all (with exceptions the certain buyer” thereof signing material) the entering into not here the are the of the delivery goods immediate relating agreement to a amounted assumption risk the instalment Act that requirement waiver my I In opinion, be in do not writing. agree. contract shall included and all of the contract were essential held contract And completed. majority even the effective the insurance was become provided written What more could contract upon delivery goods. it However, if thereto? even contained in reference have not) (and it did requirement did not so provide legal that all is not a writing requirement contract be thereunder, also taken incidents to a contract and actions all writing. require in the To so hold would be included in the Act to be included definitions given all incidents to the legal would require legal and other under contract receipt goods do not conclude that such was incidents as well. We here was What occurred legislature. intention of requiring the Act provision attempted merely acceptance but writing, to be *9 under the contract delivery goods the thereto specified with the insurance which the knowledge buyer authorized to procure the seller had not at that time been procured, and the found as a fact that jury this occurred.

(c) What then is the result legal of this delivery and found acceptance, as the The Act by jury? contains no answer. To answer we to question go this the Commercial Code, which, my in opinion, controls at this Where point. the Retail Instalment and Home Sales Solicitation Act off, leaves the the Commercial Code on Sales § begin. Code 109A-2 —303 provides: "Where this article a allocates risk or a burden as between the parties 'unless agreed,’ otherwise the agreement only not may shift the may allocation but also divide or burden.” risk The contract present case on being silent question, we must look elsewhere to determine where risk of lay, loss whether on the buyer, seller or the under here. facts Subsection 3 of the Code 109A-2 —509 (1) "In provides: case (2), not within subsection risk of passes loss buyer on his receipt of if the goods otherwise, seller a merchant; the risk passes to the buyer (1) (2) on of delivery.” tender Subsections are not applicable follows, therefore, here. It even absence of what is by termed a "waiver” jury verdict and by the trial judge, by the parties, the result would have been the same under the law. we Accordingly, should hold that the trial court erred in granting the motion for a judgment notwithstanding the verdict favor of the defendant-buyer.

In my opinion, the majority have converted a pro- against hibition "waiver” of a provision an Act into a prohibition against contract; a waiver a provision which contract Act, was be in required by writing but which waived provision not to be in required Act, although it was therein and it inwas writing.

The cases relied on the majority are where cases the buyer insured, thought Here, he was not. and was verdict, according jury took buyer the goods, not only he knowing insured, was not but expressly assumed the risk of loss. And the attempt apply rules in equity favor got possession who loss, risk assuming applied they If should anything, inappropriate. the seller. favor of

I reverse. would INDUSTRIES BLACKMON v. GABLE 49061, 49086. INC.; versa. and vice *10 Judge. Stolz, case present court in the of this

The decision in the main trial court judgment reversing in the the trial court judgment affirming appeal Industries, (Blackmon 132 Ga. App. v. Gable cross appeal 101)) Supreme reversed been having Blackmon, 542), (Gable 233 Ga. our v. Industries Court the case is remanded vacated and hereby decision is in accordance with consideration for further trial court case. Court Supreme the decision of the Pannell, J., Bell, J., P. C. with direction. Remanded Marshall, JJ., Clark, Deen, J., Quillian, P. Webb Evans, J., not participating. concur. 1975.

Decided March General, Bolton, H. Perry K. Attorney Arthur Buckland, Michael, Attorneys Lauren O. Assistant General, for appellant. Ashmore, E.

Troutman, Sanders, Carl Lockerman & Schwartz, Sanders, appellee. Dale M. PINE, INC. v. & HARDWOODS

49329. MOUNTAIN COMPANY. COOSA RIVER SAWMILL Judge. Stolz, case present court

The decision of this of the trial court the judgment with direction reversing Co., (Mountain Hardwoods River Sawmill & Pine v. Coosa