Mundy v. Cincinnati Ins. Co., 52872
| Decision Date | 27 January 1977 |
| Docket Number | No. 2,No. 52872,52872,2 |
| Citation | 141 Ga.App. 106,232 S.E.2d 621 |
| Parties | M. F. MUNDY v. CINCINNATI INSURANCE COMPANY et al |
| Court | Georgia Court of Appeals |
George N. Sparrow, Jr., E. Wayne Wallhauser, East Point, for appellant.
Savell, Williams, Cox & Angel, Edward L. Savell, William S. Goodman, Atlanta, Jones, Wilson & Tomlinson, John J. Jones, John E. Tomlinson, Decatur, for appellees.
Appellant Mundy appeals the jury verdict and judgment for damages and exemplary damages entered against him and in favor of appellee Francis. Mundy also attacks the verdict and judgment entered against Francis in favor of appellee Cincinnati Insurance Company.
The facts reflect that Francis' uncle, one Bankross, died intestate in October, 1970. Mundy owned and operated a funeral home. Mundy's son offered the services of the business to Francis. In an effort to determine whether Bankross had sufficient assets in his estate to pay for the funeral, Mundy suggested that Francis bring Bankross' personal papers to the funeral home for examination. It was determined that Bankross had a bank account in a Philadelphia savings institution amounting to almost $17,000. Mundy offered to assist Francis in transferring the bank assets to the local area and to assist Francis in being appointed the administrator of Bankross' estate.
After Francis was appointed administrator and Cincinnati Insurance Company posted the necessary administrator's bond, Mundy further volunteered to assist Francis in administering the estate. The evidence indicates that as expenses were incurred Mundy suggested that Francis simply sign blank checks and Mundy would pay for the expenses since he, Mundy, was more familiar with such matters. The evidence further reflects that within a few weeks the estate had been depleted to approximately $150. There were expenses directly related to the administration of the estate and additional sums were shown to have been transferred to the personal and business bank accounts of Mundy. Upon an accounting before the Probate Court of DeKalb County, $15,870.18 was disallowed as being improper charges upon the estate. The Probate Court called upon surety, Cincinnati Insurance Company to restore the improperly dissipated assets to the estate. Following restitution to all heirs, excluding Francis, Cincinnati Insurance Company brought the present action jointly against both Francis and Mundy. Francis filed a cross complaint against Mundy seeking a recovery of the entire amount recovered from him by the insurance company. The jury returned a verdict against Francis in favor of the Cincinnati Insurance Company for losses suffered under its bond plus $500 exemplary damages. The jury expressly did not find in favor of the insurance company against Mundy. However, on what apparently was a pass-through verdict, the jury found in favor of Francis against Mundy on the cross complaint for the amount of the verdict awarded the company on the bond plus exemplary damages in am amount of $10,000.
Mundy enumerates some 22 errors. In general he complains that the trial court erred in failing to grant Mundy's motion for summary judgment in relation to the insurance company's original complaint for several reasons: there was no privity of contract between Mundy and the surety; the surety was suing on the basis of subrogation rights which, being based in tort, were nonassignable; the action of the Probate Court was res judicata; and the evidence was insufficient to support the verdict. Mundy also complained that the trial court should have dismissed Mundy as a party defendant in the cross complaint because the tort action could not be assigned and for additional reasons that there is no lawful ground of contribution between joint tortfeasors; that since the action was based in the contract of surety, exemplary damages were improper; and finally, that the trial court erred in charging on theories of principal and agent, on the issue of fraud, exemplary damages, and in refusing to charge on the law of contribution. Held:
1. We need not consider whether the trial court made any error in the case between the plaintiff below, Cincinnati Insurance Company, and Mundy. The jury in its verdict expressly found in favor of Mundy as against the insurance company. It is well established that with respect to rulings of the trial court, submission of evidence and instructions with respect to issues which were decided in favor of appellant, any such errors are harmless to appellant. Brand v. Montega Corp., 233 Ga. 32, 209 S.E.2d 581; McDonald v. Rogers, 229 Ga. 369, 191 S.E.2d 844; Sellers v. Savannah, etc., Railway, 123 Ga. 386, 51 S.E. 398.
2. As to the cross complaint brought by Francis against Mundy, it was in the nature of an independent action between the two original defendants, though related to the complaint brought by Cincinnati Insurance Company. As such, the trial court properly refused to dismiss Mundy as a party defendant to the cross complaint. Hinton, Inc. v. Institutional, etc., Trust, 133 Ga.App. 364, 211 S.E.2d 169; Peckham v. Metro Steel Co., 126 Ga.App. 685, 191 S.E.2d 559. Furthermore, because the cross complaint is in the nature of an independent action between Francis and Mundy, those allegations by Mundy that it was a derivative action arising out of the relationship between the insurance company and Francis; that it dealt with a nonassignable tort, and those arguments dealing with the contractual relationship between the insurance company and Francis, rights of indemnification inherent in subrogation, and similar arguments related to a derivative action are irrelevant to the rights existing between Francis and Mundy.
3. Mundy admitted in his answers to the complaint and the cross complaint that his relationship to Francis was one as agent. These admissions were never withdrawn. The relationship of principal and agent having been admitted, and never withdrawn, that relationship stands as an established fact. Venable v. Block, 138 Ga.App. 215, 216, 225 S.E.2d 755; Florida Yellow Pine Co. v. Flint River Naval Stores Co., 140 Ga. 321, 78 S.E. 900. It follows that the trial court did not err in including in its charge to the jury, principles of law dealing with the duty owed to the principal by his agent. Crosby v. Rogers, 197 Ga. 616, 30 S.E.2d 248.
Mundy argues that he could not have acted as agent for Francis inasmuch as Francis was appointed administrator by court order; and that in order for Mundy to have acted as agent to the administrator, that relationship had to have the approval of the Probate Court. This argument fails to recognize that Mundy volunteered to act ina personal and confidential manner to assist Francis in the administration of the estate, and in that capacity Mundy was entrusted with the...
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