Kelly v. Georgia Cas. & Sur. Co., 21220

• Decision Date: 22 May 1961
• Docket Number: No. 21220,21220
• Citation: 216 Ga. 834,120 S.E.2d 329
• Court: Georgia Supreme Court
• Parties: Frances W. KELLY, Executrix, v. GEORGIA CASUALTY & SURETY CO. et al.

Page 329

120 S.E.2d 329

216 Ga. 834

Frances W. KELLY, Executrix, v. GEORGIA CASUALTY & SURETY CO. et al.

No. 21220.

Supreme Court of Georgia.

May 22, 1961.

Syllabus by the Court

The question certified by the Court of Appeals calls for a decision of the entire case and would require a consideration by this court of the law and the facts. Under the constitutional provisions relative to certified questions and the decisions of this court construing the same, the question cannot be answered.

The Court of Appeals (in Case No. 38,483) certified to this court the following question:

'Is the case of Seabrook v. The Underwriters Agency, 43 Ga. 583, which was a bill in equity, binding authority for the maintenance of the common-law action for deceit for damages against an insurance agent, who allegedly falsely made oral representations that he had issued a binder covering property against loss by fire? See Hart v. Waldo, 117 Ga. 590 (44 S.E. 320}; Fire & Casualty Insurance Co. of Conn. v. Fields, 212 Ga. 814 (96 S.E.2d 502); Code § 56-801.'

Howard & Storey, James C. Howard, Jr., Atlanta, for plaintiff in error.

Maurice N. Maloof, George A. Durden, Smith, Field, Ringel, Martin & Carr, Atlanta, for defendants in error.

MOBLEY, Justice.

If an answer by the Supreme Court of a question certified to it by the Court of Appeals would constitute a decision of the main case, the question cannot, under the Constitution, be answered. Gunby v. Roberts, 205 Ga. 346, 53 S.E.2d 370; Lynch v. Southern Express Co., 146 Ga. 68, 90 S.E. 527. A certified question of law and fact will not be answered and, even if the question certified is one of law only, it will not be answered if such answer would necessarily control the decision of the case. Johnston v. Travelers Insurance Co., 183 Ga. 229, 188 S.E. 27; English v. Rosenkrantz, 150 Ga. 817, 105 S.E. 613. The question certified in this case is determinative of the outcome of the case and, in addition, in order to adequately and intelligently answer the question, this court would be required to look beyond the legal issues involved to the factual background of the case under consideration. For the reasons above stated, we must respectfully decline to answer the question certified.

All the Justices concur.

* Should read '43 S.E. 998'.