Consolidated Tel. Co. v. Kincaid, 36238

• Decision Date: 23 October 1956
• Docket Number: No. 1,No. 36238,36238,1
• Citation: 96 S.E.2d 322,94 Ga.App. 823
• Parties: CONSOLIDATED TELEPHONE COMPANY v. Mary KINCAID et al
• Court: Georgia Court of Appeals

Page 322

96 S.E.2d 322

94 Ga.App. 823

CONSOLIDATED TELEPHONE COMPANY v. Mary KINCAID et al.

No. 36238.

Court of Appeals of Georgia, Division No. 1.

Oct. 23, 1956.

Rehearing Denied Dec. 14, 1956.

Syllabus by the Court

The trial judge erred in granting the plaintiff's motion for a directed verdict.

Moultrie Insurance Agency filed in Colquitt Superior Court a suit upon an open account against Consolidated Telephone Company. The petition alleged in substance that the defendant was indebted to plaintiff in the amount of $2,111.61 on account, as shown by a bill of particulars attached to the petition. The defendant demurred generally and specially to the petition. The court overruled all except ground 3 of the demurrer. The answer denied that defendant was indebted to plaintiff in any amount.

Ground 3 of the demurrer was sustained. It objected to all items of the account sued upon bearing a date prior to December 17, 1950. This ruling was not excepted to, and the plaintiff, in compliance with the ruling, amended the petition by reducing the amount sued for to $1,011.61, which was the exact amount of items of indebtedness accruing up to January 1, 1951, minus the payments made on the account up until that time. Thereafter the suit proceeded for the sum of $1,011.61.

On the trial the evidence disclosed that the account arose out of, and was for, premiums for insurance furnished to the defendant; that the defendant requested the plaintiff to procure for it certain insurance policies. These policies were known as 'Schedule liability' policies. They were not written by the plaintiff but were delivered by it to the defendant on behalf of the United States Fidelity & Guaranty Company.

The premium on each of these policies was to be determined from an audit made at the end of the policy period and was based upon the insured's pay roll. The United States Fidelity & Guaranty Company sent an agent at the end of the policy period and made the audit for determining the amount of the premium. Said United States Fidelity & Guaranty Company notified the plaintiff of the amount of premium due; the plaintiff paid the premium and billed the defendant for that amount. The audits were retained by the United States Fidelity & Guaranty Company and were not sent to either the plaintiff or the defendant, nor were they introduced in evidence. These audits show the correct debits and credits constituting the amount sued upon. No witness testified that the audits were correct. Mrs. Oscar Kincaid, witness for the plaintiff, testified that the ledger sheet showed the correct debits and credits of defendant's account with the plaintiff; that none of an amount of $1,011.61 so shown against the defendant had been paid though all of same was due; that she did not make the audit and did not know who did make it; and that she could not testify that the audit was correct. On cross-examination Mrs. Kincaid testified: 'I did not make the entries of charges on those sheets. I have reason to believe they are correct, but cannot swear that they are correct. My husband handled Mr. Kirk's account for years before he died. He didn't make the entries either. I was just going by the fact that Mr. Kirk paid part on them. Mr. Halpert or someone who was working with him in the agency made these entries. I was not in the office at the time. They were not made under my supervision or direction. The Moultrie Insurance Agency was a partnership engaged in the general insurance business. It was the agent for the United States Fidelity & Guaranty Company. That's the only company whose policies are on this schedule since December 17, 1950. As agent for United States Fidelity & Guaranty Company, the Moultrie Insurance Agency solicited and wrote insurance contracts. United States Fidelity & Guaranty Company was to receive a premium for the protection afforded under the contract. All the contracts of insurance provide that the insurer get the premium. These items listed on that bill of particulars or ledger sheet, about which I testified, are items for premiums under those contracts. You see the insurance agents get so much money from the person whom they are insuring and send a portion of that to the company and keep a portion for themselves. They are entitled to some commission out of the premium. But this is the total amount that he owed. It is the total amount that the contract says he was to pay to the agency for premium. All of these items are insurance premiums. There's nothing else in this suit sought to be recovered for except insurance premiums. The Moultrie Insurance Agency paid these premiums to the Moultrie [United States] Fidelity & Guaranty Company for the insured, but the Moultrie Insurance Agency did not take any assignment from the United States Fidelity & Guaranty Company for the claim against the Consolidated Telephone Company for premiums which were paid for these policies.' The account sued upon was not introduced in evidence.

At the conclusion of the plaintiff's evidence the defendant's counsel made a motion for a nonsuit, and thereafter for a judgment notwithstanding the verdict, which were denied. The plaintiff then made a motion for a directed verdict which was granted. The defendant excepted to the denial of its motion for a judgment notwithstanding the verdict and to the grant of the directed verdict for plaintiff.

Bob Humphreys, Moultrie H. C. Eberhardt, Franklin, and Eberhardt, Barham & Coleman, Valdosta, for plaintiff in error.

Horkan & Peters, George A. Horkan, Jr., Moultrie, for defendants in error.

QUILLIAN, Judge.

For convenience we refer to Moultrie Insurance Agency as plaintiff and Consolidated Telephone Company as defendant, they having occupied these respective positions in the trial court.

The grounds of the demurrer to the petition, other than that referred to in the...