Franklin Life Ins. Co. v. Hill

• Decision Date: 25 September 1975
• Docket Number: 50935,Nos. 50934,No. 3,s. 50934,3
• Citation: 136 Ga.App. 128,220 S.E.2d 707
• Parties: FRANKLIN LIFE INSURANCE COMPANY v. N. J. HILL et al. W. J. SONNE v. N. J. HILL et al
• Court: Georgia Court of Appeals

Page 707

220 S.E.2d 707

136 Ga.App. 128

FRANKLIN LIFE INSURANCE COMPANY v. N. J. HILL et al.

W. J. SONNE v. N. J. HILL et al.

Nos. 50934, 50935.

Court of Appeals of Georgia, Division No. 3.

Sept. 25, 1975.

Rehearing Denied Oct. 15, 1975.

Syllabus by the Court

1. The court did not err in excluding testimony on objection that it was hearsay and a self serving declaration.

2. No duty devolved upon the court to suggest tot he litigants the manner in which they should try their case.

3. The evidence here does not demand a finding that a life insurance general agent, in prosecuting a warrant against a salesman for theft by deception, acted with probable cause.

4. Where the principal has it within its power to disavow the proposed act of the agent and terminate the agency, but fails to act until after the agent's purpose has been accomplished, it becomes a question of fact whether the agent had in fact departed from the scope of his agency in committing the act.

This is an action for malicious prosecution by Hill, a salesman for the defendant Franklin Life Insurance Company, against the company and its general agent Sonne. The insurer had adopted a hierarchical structure in which Hill worked under Sonne, who had persuaded him to become a salesman for the company; Sonne's general agency was for a territory included among others supervised by Dykes, a regional manager, and Dykes' territory in turn was a part of that supervised by regional manager Wyatt.

Hill as a new employee was entitled to and did receive loan advances against policies sold amounting to 60% of the commission, for which he signed demand notes bearing 6% interest. Hill sold policies to Brown and Churchwell and received loan advances thereon. Shortly afterward these policies were canceled. Sonne contacted the purchasers and was told in both instances that the cancellations were due to the premiums being greater than they expected; whether actual misrepresentations were made is a disputed point. Sonne took out arrest warrants for theft by deception against Hill and two other salesmen. He dismissed at least one of these warrants. Hill was not arrested for some two months; this was in part, according to the testimony of a detective with whom he conferred, because the latter was not convinced that a crime had been committed. However, following two or three trips by Sonne to his office, and a follow-up letter urging the action, a warrant was issued and Hill was arrested and jailed. A subsequent commitment hearing resulted in dismissal of the charges.

The civil action was tried by the court without a jury and resulted in a judgment against the defendants jointly. Each has filed appeal to this court.

Harris, Watkins, Taylor & Davis, Joseph H. Davis, Macon, for Franklin Life Ins. Co.

Willis B. Sparks, III, Macon, for Sonne.

Mincey & Kenmore, Sylvia G. Haywood, David L. Mincey, Jr., Harris, Watkins, Taylor & Davis, Joseph H. Davis, Willis B. Sparks, III, Macon, for appellees.

DEEN, Presiding Judge.

1. Sonne complains of the exclusion of certain evidence offered by himself and the witness Brown, a salesman. Brown had accompanied Sonne in one of the latter's efforts to have the warrant sworn out, and was attempting to state reasons given by the detective for not serving the warrants, and his direction to Sonne to go to the district attorney's office. As to Sonne's testimony, following objections to his statements of his general policy in managing the business the judge said, 'Let's stick to the issue.' Sonne replied: 'I'm trying to explain the reason why 1 signed the warrant' and the court replied, 'All right, sir, you can explain why.' Sonne then went into a conversation with the detective in which he said merely that he explained his information to Clark and Clark said, 'What you're saying there sounds fine,' at which the court stated, 'Don't go into what he said now.' Two other objections were sustained: One to Sonne's testimony that certain people told him they didn't know where Hill was; another to the following statement by Sonne on the ground that it was a self serving declaration: 'I talked to my wife at the time who was an attorney and I said, Jean, I'm very perplexed. I said I've been in this life insurance business with Franklin for five years. I've financed a good number of men and I take into consideration 10% of my income to go off on bad financing. I said but now I'm confronted with the situation to where I have a man who-not just bad financing, I realize that some people don't have the ability to be in the insurance business but I have . . .'

The appellant now contends that the effect of these rulings was to prevent him from explaining his motives in having the warrants sworn out, in contravention of Code § 38-302 which permits testimony, otherwise objectionable as hearsay, in order to explain conduct and ascertain motive. It is obvious from reading the testimony, given by Sonne without questioning by counsel and by Brown on questioning by Sonne, that the corrective measure used by the court were for the purpose of excluding irrelevant material, either of a hearsay or self serving character. The court specifically instructed the defendant that he could explain his motives in signing the warrant; what he attempted to do was to hold the witness to the subject matter at hand. Enumerations 4 through 7 are without merit.

2. Appellant Sonne further complains that the trial judge did not aid him in his presentation of the case by (1) advising him what requirements should be followed in making offers of proof; (2) inquiring as to the materiality and admissibility of tendered testimony; (3) telling him what showing he should make; or (4) advising him to place excluded material in the record to lay a foundation for appeal. In other words, this appellant is complaining because the judge did not try his case for him. A judge may of course give counsel the benefit of his views on the law '(b)ut it is error prejudicial to the opposite party for the court to make suggestions or remarks tending to impress and fortify the positions of one party rather than the other.' Bugg v. State, 17 Ga.App. 211(5), 86 S.E. 405. If this appellant chose to go to trial without counsel, it was not the function of the trial judge to interject himself into the proceedings and try his case for him, generally a hazardous undertaking giving rise to contentions by the opposite party, if he loses, that the court has failed to show the impartiality required by Code § 81-1104.

3. Code § 26-1803 defines theft by deception (the crime charged in Sonne's warrant against Hill) as where one 'obtains property by any deceitful means or artful practice with the intention of depriving the owner of said property.' It is not clear whether as prosecutor the defendant had in mind fraud against insurance policy buyers by selling them more than they had intended to buy, or fraud against Sonne and the company by misrepresenting the amount he had sold and thus obtaining higher loan credits. The word 'deprive' means to withhold property of another either permanently or temporarily. Code § 26-1801(a). It is questionable, however, that obtaining money in exchange for a demand interest-bearing note would constitute a deprivation to another where there is no evidence that the payee did not honor it or did not intend to pay when the demand was made. An equal ambiguity attaches to the question of whether the obtention of a contract selling one more than he intended to buy (where the amount appeared correctly in at least one place on the contract at the time it was signed by the buyer) would constitute theft. "Ordinarily the existence of probable cause is a question for the jury, but where...