Kane v. Standard Oil Co. of Ky., 40338

Decision Date01 November 1963
Docket NumberNo. 40338,No. 3,40338,3
PartiesJoseph A. KANE v. STANDARD OIL COMPANY OF KENTUCKY
CourtGeorgia Court of Appeals

Robert S. Whitelaw, Robert Carpenter, Atlanta, for plaintiff in error.

Gambrell & Mobley, David H. Gambrell, Fryer, Harp & Turk, William R. Harp, Atlanta, for defendant in error.

Syllabus Opinion by the Court

HALL, Judge.

This was an action on account for purchases made by use of a credit card issued by the plaintiff to the defendant. The defendant's answer denied the indebtedness and alleged that the defendant, after receiving a monthly statement that included several charges made by one Robinson, had notified the plaintiff that Robinson had stolen one of the defendant's credit cards and was not authorized to use it, and requested the plaintiff to take action to stop the extension of credit on the card, but that the defendant made no attempt to prevent further unauthorized charges. There was a verdict and judgment for the plaintiff, and the defendant assigns error on the overruling of his motion for new trial. HELD:

1. When the grounds stated in an assignment of error are that the verdict is contrary to the evidence and contrary to law and the principles of justice and equity, and no specific question of law is stated, the only question for determination is whether the verdict, for want of sufficient evidence to support it, is contrary to law. Newman v. Arnold, 176 Ga. 387, 388, 168 S.E. 27; Calhoun v. Ozburn, 186 Ga. 569, 570, 198 S.E. 706; Jackson v. Sapp, 210 Ga. 134, 135, 78 S.E.2d 23; Walker v. State, 216 Ga. 474, 475, 117 S.E.2d 156; Brown v. State, 15 Ga.App. 115, 82 S.E. 634; Durham v. Pitts, 101 Ga.App. 437, 439, 114 S.E.2d 217. The defendant did not make specific assignments of error raising the questions he now argues on the general grounds. 1 Accordingly, since there was evidence to support the verdict, the trial court did not err in overruling the general grounds of the motion for new trial.

2. Special Ground 1 complains of the court's charge that 'the authority of the holder of the credit card in this case need not be proved by an express contract between the plaintiff and defendant, but may be established by the defendant's conduct and course of dealing, for the one who holds out another as his agent and by his course of dealing indicates that the agent has certain authority and induces another to deal with his agent as such, he is estopped to deny that the agent has any authority which as reasonably deducted from the conduct of the parties the agent apparently has.' The plaintiff's evidence made the issue that the defendant employed Robinson and gave him the credit card. The evidence showed that the defendant paid for some of Robinson's purchases. This supposedly was the evidence to which the charge had reference.

The defendant argues that this charge was inaccurate because the circumstances in this case were such as to put the plaintiff on notice to inquire into the real authority, and the evidence made it questionable whether the plaintiff relied on any ostensible authority in good faith and in the exercise of reasonable prudence and diligence; therefore the failure of the charge on estoppel to incorporate an instruction on these issues made it defective. Further instruction on these points may have been warranted by the evidence to amplify the principle that a third person can rely on an estoppel by apparent authority when the authority is reasonably deducible from the conduct of the principal, or when, the third party is justified in assuming the authority is as it seems from appearances. See National Homes, Inc. v. City Plumbing & Heating Co., 108 Ga.App. 519, 133 S.E.2d 416. However, the charge complained of was not an erroneous statement of law, and if the defendant thought that a fuller instruction would aid the jury, he should have submitted a request for further instructions. Studstill v. State, 7 Ga. 2, 3(7); Lightfoot v. Southeastern Liquid Fertilizer Co., Inc., 102 Ga.App. 512, 513, 116 S.E.2d 651.

The first clause in the quoted charge contains, seemingly by inadvertence, the terms 'plaintiff and defendant,' when the intended reference was to the defendant and the persons making the disputed charges. It is not likely that this inadvertent misuse of terms misled the jury in arriving at their verdict and it does not require a reversal of the case. Siegel v. State, 206 Ga. 252, 56 S.E.2d 512; Mills v. State, 41 Ga.App. 834, 155 S.E. 104; Parker v. Bryan, 96 Ga.App. 283, 289, 99 S.E.2d 810.

3. The trial court charged, '* * * the plaintiff contends that the defendant told their Mr. Sims and Mr. Aycock that the card was delivered to this L. C. Robinson in connection with some duty assigned to him by the defendant in the State of Florida.' The defendant's contention in ground 2, that this charge was argumentative and not consistent with the evidence, is without merit in view of the testimony of Mr. Sims and Mr. Aycock.

4. In ground 3 the defendant contends that the plaintiff's evidence was not sufficient to overcome the legal presumption that a letter addressed to the plaintiff, which the defendant testified he had properly mailed, reached its destination. The defendant assigns error on the court's charge that the presumption of receipt created by the proper mailing of a letter is a rebuttable presumption. At the conclusion of this charge...

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9 cases
  • Land v. Robb
    • United States
    • United States Court of Appeals (Georgia)
    • 11 Marzo 1969
    ...514; Russell v. Pitts, 105 Ga.App. 147(3), 123 S.E.2d 708; Pendry v. Addison, 105 Ga.App. 673(3), 125 S.E.2d 523; Kane v. Standard Oil Co., 108 Ga.App. 602(2), 133 S.E.2d 913; Goldstein v. Karr, 110 Ga.App. 806(4), 140 S.E.2d 40; McEwen v. State, 113 Ga.App. 765(4), 149 S.E.2d 716; Siegel v......
  • Read v. Gulf Oil Corp.
    • United States
    • United States Court of Appeals (Georgia)
    • 1 Julio 1966
    ...unauthorized use provisions of credit cards are binding on the holder has not been decided in Georgia. See Kane v. Standard Oil Co., 108 Ga.App. 602, 604, fn. 1, 133 S.E.2d 913. We hold that a contract was effected in this case 'when the plaintiff issued its credit card to the defendant to ......
  • Goldstein v. Karr
    • United States
    • United States Court of Appeals (Georgia)
    • 3 Diciembre 1964
    ...of terms misled the jury in arriving at their verdict and it does not require a reversal of the case.' Kane v. Standard Oil Co. of Ky., 108 Ga.App. 602, 604, 133 S.E.2d 913, 916. 'A palpable slip of the tongue on the part of the judge, in instructing the jury as to an abstract proposition o......
  • Bartell v. Del Cook Lumber Co., s. 40204
    • United States
    • United States Court of Appeals (Georgia)
    • 1 Noviembre 1963
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