Bryant v. Motors Ins. Corp.
| Decision Date | 30 January 1964 |
| Docket Number | No. 3,No. 40277,40277,3 |
| Citation | 109 Ga.App. 47,134 S.E.2d 905 |
| Parties | R. F. BRYANT v. MOTORS INSURANCE CORPORATION et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. There is no merit in the defendants' motion to dismiss the bill of exceptions.
2. The issue of misjoinder may not be raised under a general demurrer which only asserts in substance that the petition fails to set out a cause of action. Misjoinder is properly attacked by a special demurrer.
(a) It is the policy of the appellate courts not to affirm the dismissal of actions for misjoinder but to remand the case with leave to amend.
3. The judgment of the trial court in sustaining the general demurrer of one of the defendants is affirmed for the reasons that, (a) the plaintiff did not attach to his petition a written insurance policy but sought to recover on the theory that he had a parol contract of insurance for a 30-month period. Code Ann. § 56-2420 is not applicable to this case; (b) the petition alleges as a basis of the cause asserted a mere opinion of law insufficient to support actionable fraud; (c) sufficient specific acts of fraud were not alleged so as to show that the acts constituted fraud.
The purchaser of an automobile filed a suit for damages against three codefendants: the dealer who sold him the car under a conditional sale contract; the finance company which subsequently purchased the contract; and the insurance company which was to have insured the car. Plaintiff, R. F. Bryant, alleges that at all times the president of the Bryant Chevrolet Co. was acting within the scope of his employment as agent for the codefendant automobile dealer, finance and insurance companies; he alleges fraud and conspiracy.
Plaintiff contends that when he purchased the automobile on November 30, 1960, the president of Bryant Chevrolet told him he would procure insurance through the 30-month term of the loan and that, relying on this representation that he had insurance coverage, plaintiff had not secured other insurance. The collision in which his car was severely damaged occurred on April 28, 1962. Plaintiff alleges that Motors Insurance Co. has denied liability and that the finance company, General Motors Acceptance Corp., claims that the petitioner still owes $555.54. Plaintiff sues the three defendants to recover the cost of repairs to his automobile, punitive damages, and attorney's fees.
Defensive pleadings were filed separately for each of the defendants. Plaintiff's appeal is based on the trial court's action in sustaining demurrers and dismissing the petition as to each of the defendants.
R. L. Carr, Sam Johnson, Glennville, for plaintiff in error.
Sharpe & Sharpe, T. Ross Sharpe, T. Malone Sharpe, Marvin Hartley, Jr., Lyons, Bouhan, Lawrence, Williams, Levy & McAlpin, Alan S. Gaynor, Savannah, for defendants in error.
1. The defendants in this case have filed a motion to dismiss the bill of exceptions and the appeal on the ground that the bill and the record were not timely transmitted and filed with this court as required by law. The ground is based on an attached certificate of the Clerk of the Superior Court of Evans County which in substance states that the delay was occasioned by the negligence of the appellant in failing to request the clerk to prepare, certify, and transmit the record within the required time and in failing to make arrangements for the payment of the preparation of the record and paying for its certification.
There is no merit in the motion to dismiss.
Whatever the rule may be after July 1, 1963, the effective date of the Act of 1963, Ga.L.1963, pp. 368-369, Code § 24-2729, the clerk had no right prior to that time to refuse either to prepare the record or to transmit the record to the Clerk of the Court of Appeals simply because the appellant had not made arrangements to pay the costs. The bill and the record here were governed by Code § 24-2729 as it stood prior to the Act of 1963.
The clerk's duty was 'to make out a copy of such bill, together with a complete transcript of the record' and certify and transmit them to the clerk of this court. This the clerk did not do. The bill will not be dismissed because of this failure of the clerk.
2. Plaintiff has assigned error on the trial court's action in sustaining the general demurrers of the Motors Insurance Corp. and Bryant Chevrolet, Inc. based on alleged misjoinder of parties. The defendants and the trial court described these demurrers as general. (Numerous other demurrers of these two defendants were overruled, but they did not bring exceptions on those rulings by means of a cross bill.)
It has been rather loosely said in many cases that misjoinder of parties or causes of action must be taken advantage of by special demurrer, and is not ground for general demurrer. McCullough v. Atlantic Refining Co., Inc., 181 Ga. 502(2), 182 S.E. 898; Ga. R. & Banking Co. v. Tice, 124 Ga. 459, 52 S.E. 916; Riley v. Royal Arcanum, 140 Ga. 178, 78 S.E. 803; Neil v. Dow Law Bank, 138 Ga. 158, 74 S.E. 1027; Waters v. De Kalb County, 208 Ga. 741(3), 69 S.E.2d 274.
Most, if not all, of the decisions enunciating this principle in reality merely hold that the issue of misjoinder may not be raised under a general demurrer which only asserts in substance that the petition fails to set out a cause of action. On the other hand, where the language of the demurrers has been found by the courts to have been broad enough to embrace the question of misjoinder, they have been treated as special demurrers whether they were called general demurrers or not. We have this latter situation in the case before us. Here the demurrers, though denominated 'general' by the pleaders and the trial court, set forth the criticism of misjoinder with sufficient definiteness to satisfy the requirements of a special demurrer. The substance rather than the title or what they are called determines their effect, and we will treat them as special demurrers.
(a) The so-called general demurrers of both Bryant Chevrolet and Motors Insurance Corp. in effect demurred to the petition on the ground that there is a misjoinder of parties, because:
The trial court's judgment in sustaining the so-called general demurrers and dismissing the petition as to the defendants Motor Insurance Corp. and Bryant Chevrolet, Inc. is controlled by the holding in Whiddon v. Southern Auto Finance Co., 186 Ga. 726, 198 S.E. 729: ...
To continue reading
Request your trial
-
Parris & Son, Inc. v. Campbell, s. 47512
...Co., 101 Ga.App. 561, 114 S.E.2d 540; Wells v. Metropolitan Life Ins. Co., 107 Ga.App. 826, 834, 131 S.E.2d 634; Bryant v. Motors Ins. Corp., 109 Ga.App. 47, 52, 134 S.E.2d 905; Brown v. Mack Trucks, Inc., 111 Ga.App. 164, 141 S.E.2d 208; Sasser v. Coastal States Life Ins. Co., 113 Ga.App. ......
-
Mutual Life Ins. Co. of New York v. Bishop
...Ga.App. 561, 562, 114 S.E.2d 540; Wells v. Metropolitan Life Ins. Co., 107 Ga.App. 826, 834, 131 S.E.2d 634; Bryant v. Motors Ins. Corp., 109 Ga.App. 47, 52(3b), 134 S.E.2d 905; Sasser v. Coastal States Life Ins. Co., 113 Ga.App. 17(2b), 147 S.E.2d Further, 'testimony which is merely a conc......
-
Clinton v. State Farm Mut. Auto. Ins. Co.
...Ga.App. 561, 114 S.E.2d 540, and citations; Drake v. Thyer Mfg. Corp., 105 Ga.App. 20, 22(2), 123 S.E.2d 457; Bryant v. Motors Ins. Corp., 109 Ga.App. 47, 52(3), 134 S.E.2d 905, and (b) The petition alleges 'a great confidential relationship' between plaintiff and State Farm and that State ......
-
Brown v. Mack Trucks, Inc., 40925
...Ga.App. 298, 299(2), 102 S.E.2d 919; Fields v. Fire & Cas. Ins. Co. of Conn., 101 Ga.App. 561, 114 S.E.2d 540; Bryant v. Motors Ins. Corp., 109 Ga.App. 47, 52(3b), 134 S.E.2d 905. It does not appear in the petition whether the plaintiff ever had possession of the policy that he alleged prot......