Blaylock v. Prudential Ins. Co. of America
| Decision Date | 02 October 1951 |
| Docket Number | No. 2,No. 33655,33655,2 |
| Citation | 84 Ga.App. 641,67 S.E.2d 173 |
| Parties | BLAYLOCK v. PRUDENTIAL INS. CO. OF AMERICA |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where a corporation, at its own expense, provides group insurance through certain master group policies, and further, at its own expense, provides assistance to its employees in presenting their claims and collecting their benefits under such policies, the employees of such corporation rendering such assistance are not, under the facts of this case, for that reason agents of the insurance company upon whom process may be legally served.
J. H. Blaylock brought an action against The Prudential Insurance Company of America on a certificate of insurance issued to him under master, or group, policy, alleging that the defendant had an office and agency force in Floyd County, Georgia, and that J. W. Ware, Jr., was the authorized agent of the defendant. On January 18, 1951, the sheriff of the county made the following entry of service: 'I have this day served the defendant, The Prudential Insurance Company of America, with a copy of the within suit by leaving a copy of same with W. Y. Brown. Similar entries were made as to Hudson Nix, and J. W. Ware, Jr. On February 10, 1951, a deputy sheriff made the following entry of service: 'I have this day served the defendant, The Prudential Insurance Company of America, by serving W. Y. Brown, agent for The Prudential Company of America, personally by handing him a true copy of the within petition and process. Similar entries were made as to Hudson Nix and J. W. Ware, Jr. The defendant filed a traverse of the service, denying that Brown, Nix, or Ware, were officers, agents, or employees of the defendant, and alleging that none of them was authorized to accept service of process in its behalf. The defendant likewise filed its plea to the jurisdiction of the Superior Court of Floyd County.
By agreement of counsel, the court, without a jury, determined all issues of law and fact, sustained the traverse of the returns of service, vacated and set them aside, sustained the plea to the jurisdiction, and dismissed the case. It is upon these judgments that error is assigned in this court.
Hicks & Culbert, Rome, for plaintiff in error.
W. K. Meadow and Spalding, Sibley, Troutman & Kelley, all of Atlanta, Matthews, Owens & Maddox, Rome, for defendant in error.
The question of primary importance for decision in this case is whether or not, under the evidence adduced upon the hearing of the traverse of the entries of service and the plea to the jurisdiction, the persons served, W. Y. Brown, Hudson Nix, and J. W. Ware, Jr., or any of them, were such agents of the Prudential Insurance Company of America as contemplated by Code, § 22-1101 upon whom service of process could be legally served.
It is, of course, elementary under our law that a suit against the defendant insurance company could not be properly served in Floyd County, Georgia, unless the defendant had an agent or place of doing business in that county. Mr. Frank M. Akers, Jr., the defendant's agency manager for North Georgia, in his deposition, which was introduced upon the hearing, testified that the defendant did not have any officers, agents, or place of doing business in Floyd County at the time of the attempted service; and he testified further that neither Brown, Nix, nor Ware was an agent of the defendant insurance company. The testimony of Mr. James C. Maloney, service consultant for the defendant insurance company's Group Policy Holder Service Division, was to the same effect in his deposition, which was introduced in evidence. Messrs. Brown, Nix, and Ware, each in his turn, stated that they were not agents of the defendant insurance company, but that they were full-time employees of the Celanese Corporation of America and that each of them received his entire compensation from that corporation. Agency or no agency is a fact, and not a mere conclusion. Scott v. Kelly-Springfield Tire Co., 33 Ga.App. 297(6), 125 S.E. 773; Essig v. Cheves, 75 Ga.App. 870, 876, 44 S.E.2d 712; Shaw v. Jones, Newton & Co., 133 Ga. 446(3), 66 S.E. 240; Sankey v. Columbus Iron Works, 44 Ga. 228; and, in the absence of evidence of circumstances, apparent relationships, and the conduct of the parties, establishing the contrary, neither Brown, Nix, nor Ware was an agent of the defendant insurance company to...
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