Georgia Cas. & Sur. Co. v. Hardrick
| Decision Date | 12 July 1955 |
| Docket Number | No. 18982,18982 |
| Court | Georgia Supreme Court |
| Parties | GEORGIA CASUALTY & SURETY CO. v. Alfred S. HARDRICK. |
Syllabus by the Court.
The petition failed to state a cause of action for any relief, and the trial court erred in overruling the general demurrers.
Alfred Hardrick filed an equitable petition against the Georgia Casualty and Surety Company, and in substance alleged: Phillip Johnson, with offices in Alma, Georgia, was on January 16, 1954, 'an agent of the defendant company,' engaged in the business of selling automobile liability insurance policies for the defendant. The defendant is an insurance corporation authorized to do business in the State, and for a premium enters into contracts of automobile liability insurance, whereby the company agrees to pay on behalf of the insured all sums which the insured shall become legally obligated to pay, arising out of the ownership, maintenance, or use of the automobile designated in the contract of insurance. On the date aforesaid, the petitioner went to the agent's office, and after some discussion, it was agreed between the petitioner and the agent that a policy should be issued within certain limits, and it was agreed that the contract of insurance would take effect at noon, January 16, 1954, and be effective and enforceable for a period of one year. The agent advised the petitioner that the premium would be $60, which the petitoner agreed to pay a little at a time, and this agreement was satisfactory with the agent. It was understood between the petitioner and the agent that the agent would deliver the policy of insurance as soon as it was written. The agent sells only standard automobile liability policies. On the date aforesaid the agent had actual and apparent authority to orally bind the defendant for casualty insurance coverage, and the petitioner had purchased similar insurance under identical circumstances. It is the custom and practice in Alma, Georaia, for agents to bind their companies orally, rather than to require a prospective insured to wait until the policy is written. The people of the area have knowledge of this practice, and various insurance companies, including the defendant, know, or ought to know, that such is the practice and custom. The petitioner left the office of the agent, after he had agreed to pay the premium, and believed that he was covered by a standard liability insurance contract. On Tuesday, January 26, 1954, and again on Thursday, January 28, 1954, the petitioner tendered to the agent the full premium of $60 in cash as agreed upon, but the agent refused to accept the premium. Phillip Johnson is the person to whom the premium should be tendered, he being the resident agent of the defendant. On January 23, 1954, only seven days after the petitioner contracted with the agent for insurance, Alonzo Hardrick, the son of the petitioner, while driving the automobile 'insured as aforesaid,' had an accident and Ronnie Johnson, riding in the automobile, was gravely injured, and a damage suit has been filed against the petitioner, as will appear by reference to a copy attached as an exhibit. Alonzo Hardrick was driving the automobile with the permission of the petitioner, and the insurance 'would extend' to cover Alonzo Hardrick and the petitioner. The insurance contract contains a clause reciting that the insurer shall defend any suit brought against the insured. Such defense entails the hiring of attorneys, investigation, and other expenses. 'The insurer should finance and conduct' a defense in the petitioner's behalf. The defendant has failed and refused to deliver the contract of insurance. The petitioner is entitled to a decree of spcific performance against the defendant, requiring it to issue a policy of standard automobile liability insurance in the amounts set forth. It is impossible to ascertain the extent of the injury and damage to him if the court does not require the defendant to issue such a contract of insurance. The defendant has acted in bad faith in refusing to issue the policy or contract of insurance, and the petitioner is entitled to recover $500 as attorneys' fees for the prosecution of the present action.
The petitioner prayed: that the defendant be required to produce into court certain written documants; that it be required to specifically perform its contract, and to write up and deliver to him a standard contract of automobile liability insurance; for the recovery of $500 damages; and for other relief.
The demurrers of the defendant to the petition were overruled. After the introduction of evidence, the defendant made a motion for a directed verdict in its behalf, which motion was overruled. A verdict was returned for the petitioner, and a judgment entered requiring the defendant to specifically perform and deliver a policy of insurance as prayed by the petiion.
The defendant filed a motion for judgment notwithstanding verdict, on the ground that the evidence was wholly insufficient to authorize a verdict in favor of the petitioner, and a motion for new trial, in the alternative, on the general grounds. The motion for judgment notwithstanding verdict and the motion for new trial wher both denied, on which rulings error is properly assigned in the bill of exceptions. The defendant also assigns error on the overruling of its demurrers.
The parties will be referred to in the opinion as they appeared in the trial court.
Larry E. Pedrick, Bennett, Pedrick & Bennett, Waycross, for plaintiff in error.
Barrie L. Jones, Alma, for defendant in error.
1. When a pleading is attacked by a general demurrer, it will be construed most strongly against the pleader. The petition in the present case was subject to general demurrer for a number of reasons.
Where the principal's name is disclosed, and an agent professes to act for him, it will be held to be the act of the principal. Code, § 4-304. In Moore v. Adams, 153 Ga. 709, 718, 113 S.E. 383, 386, 23 A.L.R. 925, this court stated: 'This statute allows latitude as to the form in which an agent may contract, but in order to bind his principal the name of the principal must be disclosed, and the agent must profess to act for him.' In that case it was held that, where the petition did not show that the agent revealed that he was acting for the principal, the petition was subject to general demurrer. See also McRitchie v. Atlanta Trust Co., 170 Ga. 296(3), 152 S.E. 834; Ogletree v. Ingram & LeGrand Lumber Co., 208 Ga. 855, 858, 69 S.E.2d 723.
While the petition alleged that Phillip Johnson 'is a regularly licensed insurance agent,' and 'an agent of defendant company,' it is nowhere alleged in the petition that Johnson revealed that he was...
To continue reading
Request your trial
-
Parris & Son, Inc. v. Campbell, s. 47512
...Code Ann. § 56-2420, the contract itself must be in writing. It cannot be partly in writing and partly oral. Georgia Cas. & Surety Co. v. Hardrick, 211 Ga. 709, 712, 88 S.E.2d 394; Mitchiner v. Union Central Life Ins. Co., 185 Ga. 194, 195, 194 S.E. 530. 9. The policy provides that 'No perm......
-
Pennsylvania Thresherman & Farmers Mut. Cas. Ins. Co. v. Gardner
...an insured, arising from the construction and operation of a policy for automobile liability coverage. See, Georgia Casualty & Surety Co. v. Hardrick, 211 Ga. 709, 88 S.E.2d 394, the cases cited; Peninsular Life Ins. Co. v. Downard, 99 Ga.App. 509, 109 S.E.2d 279; Code Ann., Ch. 56-24. 'A d......
-
Frist v. U.S. 5 & 10 cents Stores, Inc.
...Ga. 97(2), 41 S.E. 272, a petition on general demurrer must be construed most strongly against the pleader, Georgia Casualty & Surety Co. v. Hardrick, 211 Ga. 709, 88 S.E.2d 394, Davis v. Johnson, 92 Ga.App. 858, 90 S.E.2d 426, and ambiguous pleading is construed unfavorably to the pleader,......
-
Georgia Bldg. Services, Inc. v. Perry
...and the contract is substantially in the name of the principal. Id. at 304(3), 152 S.E. 834; see also Georgia Cas., etc., Co. v. Hardrick, 211 Ga. 709, 711(1), 88 S.E.2d 394 (1955). Although the contract in issue does not specifically designate Landmarks as the agent for Marcasco, compare M......