Kelly v. Georgia Cas. & Sur. Co., 38483

• Decision Date: 04 December 1961
• Docket Number: No. 1,No. 38483,38483,1
• Citation: 105 Ga.App. 104,123 S.E.2d 711
• Court: Georgia Court of Appeals
• Parties: Frances W. KELLY, Executrix, v. GEORGIA CASUALTY & SURETY COMPANY et al

Page 711

123 S.E.2d 711

105 Ga.App. 104

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

No. 38483.

Court of Appeals of Georgia, Division No. 1.

Dec. 4, 1961.

Rehearing Denied Dec. 13, 1961.

Syllabus by the Court

1, 2. The petition having been held by the Supreme Court to state a cause of action in deceit against the defendant individually, neither the lack of a contract of insurance in writing nor the question whether defendant's principal consented to his being a dual agent are material, as his liability stems from tort, not agency or contract.

3, 4, 5. The evidence supported the verdict, and the motion for new trial was properly overruled on all grounds.

6. Where the petition states a cause of action for deceit, it is proper for the trial court to charge the jury on the law of punitive damages.

The plaintiff brought action against the Georgia Casualty & Surety Co. and Walter Kelly for damages, charging Kelly individually and the Georgia Casualty & Surety Co., through Kelly, as agent, with fraud and deceit, alleging that Kelly informed the plaintiff that she was insured in the defendant company and that certain real and personal property was protected against loss by fire when in fact it was not. The property burned the following day, whereupon the plaintiff brought this action for the loss sustained. To the petition as amended the defendant Kelly filed general and special demurrers. The trial court overruled the demurrers, to which order exceptions were taken.

At the close of the plaintiff's evidence, the trial court granted a nonsuit as to the defendant Georgia Casualty & Surety Co. The defendant Kelly made an oral motion for a directed verdict at the conclusion of all the testimony, which motion was overruled. The jury returned a verdict for the plaintiff against Kelly, whereupon he filed a written motion for judgment notwithstanding the verdict and a motion, as amended, for a new trial. The motion for judgment notwithstanding the verdict was amended to add the following: (1) that there is no evidence to show that the Georgia Casualty Co. ever consented for Kelly to be dual agent; furthermore, that no contract of insurance was ever issued; and (2) that under the law a contract of insurance must be in writing and that since he was bound to have that knowledge there was no reason for him to have believed that any representations by the defendant, if they were false, were true because he was bound to know that they were false chargeable with the knowledge of the law, that is, that evidence of coverage must be in writing.

By amendment, substantially similar grounds were added to the motion for a new trial.

The motions for judgment notwithstanding the verdict and for a new trial were overruled, to which rulings exceptions were taken.

The defendant having died during the pendency of the appeal, upon motion of counsel, his widow, executrix of his estate, was substituted as the plaintiff in error.

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

Maurice N. Maloof, George A. Durden, Smith, Field, Ringel, Martin & Carr, R. E. Lee Field, Atlanta, for defendant in error.

BELL, Judge.

1. In Clark v. Kelly, 217 Ga. 449, 122 S.E.2d 731, the Supreme Court, Chief Justice Duckworth dissenting, in reversing the decision of this court in Kelly v. Georgia Cas. & Surety Co., 104 Ga.App. 167, 121 S.E.2d 313, held that the present petition stated a cause of action for deceit. In view of this holding the trial court properly overruled the general demurrer.

2. The defendant's motion for judgment notwithstanding the verdict as amended contended, firstly, that the plaintiff cannot recover on the contract because all contracts of insurance must be in writing, and...