Mensinger v. Standard Acc. Ins. Co.

• Decision Date: 17 April 1947
• Docket Number: 15738.
• Citation: 42 S.E.2d 628,202 Ga. 258
• Parties: MENSINGER et al. v. STANDARD ACC. INS. CO.
• Court: Georgia Supreme Court

42 S.E.2d 628

202 Ga. 258

MENSINGER et al. v. STANDARD ACC. INS. CO.

No. 15738.

Supreme Court of Georgia

April 17, 1947

Rehearing Denied May 16, 1947.

Standard Accident Insurance Company filed a petition in the superior court of Fulton County, naming as defendants Daniel Walker Fowler, Mrs. Frances Mensinger, Miss Mattie Lou Rudolph, Mrs. K. B. Rudolph, as next friend of Miss Mattie Lou Rudolph, and J. S. Valdes, Jr., and alleging the following: On or about July 6, 1946, the defendant Fowler purchased an automobile from Thomas E. Plemmons; and acting for and on behalf of Fowler, Plemmons called A. C. Latimer an agent of the petitioner, and talked to him with reference to obtaining a liability-insurance policy for Fowler. Latimer, after talking to Plemmons for a few minutes, called to the ' phone L. G. Brown, an employee of Epsten-Stringer Company, agent of the petitioner, and had him to talk to Plemmons with reference to the purchase of insurance by Fowler. In that conversation Plemmons gave an order for the purchase of a liability-insurance policy to be issued by the petitioner to Fowler, telling Brown that Fowler would stop by the office of Epsten-Stringer Company within a few days and accept delivery of the policy. Several days thereafter Fowler called Latimer over the telephone and asked if he, Fowler, could get out of buying the said policy of insurance from the petitioner's agent Epsten-Stringer Company. Latimer told Fowler that the policy had been written, that it was good insurance, but that Fowler did not have to take it. He also told Fowler that Epsten-Stringer Company, the petitioner's agent which prepared the policy, could make him pay the premium for the policy or a fractional part thereof, but that it did not do business that way; and Latimer agreed with Fowler that the policy which had been written was cancelled and of no further effect, and that Fowler had no obligation to pay the premium for the said policy or any part thereof. Latimer notified Brown that the policy had been cancelled, and Brown stamped the policy, which had never been delivered, cancelled. At approximately 1:15 a. m. on August 4, 1946, Fowler had a collision with an automobile which was being driven by the defendant Valdes and in which the defendants, Mrs. Mensinger and Miss Rudolph, were riding. On August 6, 1946, Fowler called the office of Epsten-Stringer Company on the telephone and talked to Brown and asked him if he, Fowler, could still get the policy of insurance that he had previously talked about with Brown and Latimer. At the time of the conversation the policy had actually been cancelled and marked cancelled but was physically present in the office of Epsten-Stringer Company waiting to be forwarded to the petitioner's home office in Detriot, Michigan, for physical destruction. Brown told Fowler that he could get the policy if he wanted it. In the conversation Fowler did not tell Brown anything about the collision that he had had with the automobile of the defendant Valdes. Following that conversation Brown removed the cancellation mark that had been endorsed on the policy by a rubber stamp. About two hours after that telephone conversation, at approximately 11 a. m. on August 6, 1946 Fowler stopped by the office of Epsten-Stringer Company, saw Brown, and paid him $25 on account of the premium of the policy and obtained possession of the policy from Brown. Fowler did not tell Brown of the occurrence of the automobile collision, on the morning of August 4, 1946, at the time he paid Brown the $25 and obtained possession of the policy on August 6, 1946. Approximately two hours after leaving the office of Epsten-Stringer Company on the morning of August 6 1946, Fowler called the office of Epsten-Stringer Company on the telephone and gave notice of the collision that he had had with the automobile of the defendant Valdes on August 4, 1946, and this notice was the first knowledge of the petitioner or any of its agents or employees as to the said collision. The petitioner immediately began an investigation into the circumstances surrounding the entire transaction. On August 16, 1946, Fowler called at the office of Latimer and brought with him copies of suits that had been filed against him in Fulton Superior Court by the other defendants to this action, the said suits being cases Nos. 160,425, 160,426, and 160,427. At the said time and place the defendant Fowler conferred with the said Latimer and Thomas B. Branch Jr., one of the petitioner's attorneys, and in this conference Fowler admitted the facts hereinabove set out. He was informed that it was the petitioner's position that under the circumstances hereinabove set out the policy was not in effect at the time of the collision between the automobile driven by him and the automobile driven by the defendant Valdes on the morning of August 4, 1946. During the said conference Latimer delivered to Fowler a letter reading as follows: 'August 16, 1946. Mr. Dewell Walker Fowler, Atlanta, Georgia. Dear Sir: Because of your misrepresentation in obtaining the issuance of Standard Accident Insurance Company policy number JC-472195, Standard Accident Insurance Company elects to rescind said policy. Herewith is tendered the twenty-five dollars which was paid by you at the time you obtained delivery of said policy. Very truly yours, [Signed] Standard Accident Insurance Company, by * * *.' Latimer also tendered to Fowler $25 in lawful United States currency, which was referred to in the said letter and attached thereto. The petitioner refused to accept the copies of the petitions in the cases filed against Fowler by the other defendants. Fowler accepted the said letter, together with the $25 in United States currency, and left the office of Latimer, taking with him the said copies of suits. Thereafter, on August 27, 1946, one Ward Matthews came to the office of Latimer and handed him an envelope which, when opened, was found to contain the $25 in currency and a letter reading as follows: 'August 27, 1946. Standard Accident Insurance Company, Atlanta Claim Department, 454 Hurt Building, Atlanta, Georgia. Gentlemen: Enclosed you will find $25 which you sought to...