dissenting. The Travelers Insurance Company issued an insurance policy to Bergen, covering his automobile, and including uninsured motorist coverage. The automobile was damaged in a collision with an uninsured motorist, and Travelers paid Bergen $3,838 for damages to said car. This represented insurance for which Bergen had paid the required premium, and he had at no time "borrowed” any sum of money from Travelers. But before paying'over to Bergen this sum, to which he was justly entitled, Travelers Insurance Company called his insurance money a "loan,” and agreed to pay the money to him if Bergen would execute a fictitious and unauthorized writing designated as a "loan receipt.” We emphasize that this ploy was fictitious and unauthorized.
The "subrogation” clause of the policy provides as follows: "Subrogation: In the event of any payment under this policy, the company shall be subrogated to all the insured’s rights of recovery therefor against any person or organization and with respect to Part 2, all the rights of recovery therefor which the injured person or anyone receiving such payment may have against any person or organization. The insured, or with respect to Part 2, such person, shall execute and deliver instruments and papers, do whatever else is necessary to secure such rights and shall do nothing after loss to prejudice such rights.” Simply stated, this clause subrogated Travelers to all of Bergen’s rights against the person causing the damage, and Bergen agreed to execute and deliver any papers necessary and do any other necessary act to subrogate Travelers to Bergen’s right of action for damages. But it did not authorize Travelers to call this payment of insurance a loan; nor require Bergen to sign a loan receipt; nor require Bergen to assume the obligation of prosecuting an action to recover the insurance money *621back and turn it over to Travelers.
Without any authority under the insurance policy, Travelers sought to saddle Bergen with Travelers’ obligation of prosecuting the claim and recovering back the money. And its agent who drafted the "loan receipt” — while carefully avoiding any mention of "attorney’s fees,” did at one place in the spurious and unauthorized loan receipt insert language that purportedly required Bergen to: "... prosecute suit against such person or persons, corporation or corporations, through whose negligence the aforesaid loss was caused, or who may otherwise be responsible therefor, with all due diligence, in our own name, but at the expense of and under the exclusive direction and control of the said--”
And here the uncompleted document ends. Who was to bear the expense? The loan receipt is incomplete — the name was never filled in. It is quite plain, however, that the document by its language did not intend that the person signing the loan receipt was also to bear the expense. Notice the language: "We hereby agree to prosecute . . . with all due diligence in our own name, but at the expense of and under the exclusive direction and control of the said — __”
If it had been intended that Bergen — the same person who was to prosecute the action — was also to bear the expense, the instrument would have used the conjunction "and.” Its use of the word "but” clearly implies that someone other than the signatory to the loan receipt was to bear the expense.
We attach (p. 622, post) a photocopy of the loan receipt as it appears at page 24 of the transcript, with particular emphasis on the ending of same, showing it to be incomplete, and showing the disjunctive "but” immediately before the last sentence which deals with expense.
Webster defines "but” as "a conjunction expressing
*622
*623opposition, contradiction, antithesis, exception, discrepancy, limitation.” Webster defines "and” as "along or together with.” In the case sub judice, if the one who was to prosecute the action was to also bear the expense the language would have been thus: "We agree to . . . prosecute suit... in our name and at the expense of the said__” Clearly, the one who was to prosecute the suit and the one who was to bear the expense were two different persons or entities. Now let us look at the language used in the loan receipt by Travelers Insurance Company: “ . . . repayable only in the event and to the extent that any net recovery is made by us.” What is a "net recovery”? Webster defines "net” as "clear of, or free from all charges, deductions, etc.; remaining after the deduction of all charges, outlay, loss, etc.” In Ga. R. & Bkg. Co. v. Wright, 132 F 912, 914, it is held: "The use of the word 'net’ indicates that something is being deducted.” It is impossible to give any meaning whatever to this language in the contract if Bergen is required to pay the expense, and is not permitted to deduct that expense. If he pays the attorney’s fees, then what has he deducted? When Bergen, without any obligation whatever to do so, (except the one foisted upon him by the insurance company when it persuaded him to sign an unauthorized and fictitious loan agreement) prosecuted the case and came to Travelers with two-thirds of the amount of insurance it had paid out to its insured, Travelers says, "We want it all — you, Mr. Bergen, whether required to do so or not, have signed a loan agreement, and we contend you therein agreed to bear the expense and put us back in the position we occupied before we paid the insurance to you.” But Bergen points out that he obligated himself to pay back only the "net recovery” and that he has paid or owes his attorney 33 1/3%, and the net recovery is 66 2/3% of the total amount recovered from the uninsured motorist which he tenders to Travelers.
*624But Travelers is adamant, and although its agent drafted the contract it completely ignores those words "net recovery” therein .and insists on the language: "We ... hereby agree to ... prosecute suit... in our own name, but at the expense of and under the exclusive direction and control of the said--”
Bergen contends this latter language is incomplete because the name of the person to bear the expense was not inserted in the contract . . . and that it is very clear from the use of the conjunction "but” that a different person was to bear the expense than the person who prosecuted the suit. Further, Bergen insists, as Travelers drafted the contract, and placed "net recovery” therein, any other contradictory language (if indeed there is any intelligible contradictory language in the loan receipt) must give way to "net recovery” because ambiguities in a contract must be construed most strongly against the one who drafted same, and most favorably toward the party thereto who did not draft the contract. See Moorefield v. Fidelity Mut. Life Ins. Co., 135 Ga. 186 (2) (69 SE 119); Benevolent Burial Assn. v. Harrison, 181 Ga. 230, 240 (181 SE 829); Howkins v. Atlanta Baggage &c. Co., 107 Ga. App. 38 (1) (129 SE2d 158).
Thus, in this dissent, it is respectfully contended:
1. The "loan receipt” was a fictitious instrument, not authorized by the insurance policy, by law, or by the facts. The payment of insurance to Bergen was not a loan.
2. The subrogation agreement in the policy of insurance did not authorize or require Bergen to sign a loan receipt; and did not require him to assume the burden of prosecuting a suit so he might recover for Travelers and return to it all sums Travelers had paid to him. He was required only to subrogate Travelers to his position and allow it to proceed in his name.
3. The loan receipt is not complete in that the language at the last does not name the person who has the burden of bearing the expense.
*6254. The large space left above Bergen’s signature indicates a place for insertion of a name, and the loan receipt just did not insert such name.
5. The language used at the last of the loan receipt, including the use of the word "but” clearly shows that it was intended that one person prosecute the suit, and a different person bear the expense.
6. The loan receipt is without any consideration whatever and is a nudum pactum; the insurance company owed Bergen the insurance money and was required to pay it to him; it cannot successfully contend that this payment was a loan, and was the consideration for signing an unauthorized loan receipt, and an agreement to do something (prosecute the suit) that the policy of insurance did not require him to do.
I, therefore, dissent from the majority opinion, and would reverse this case.