Mundy v. Cincinnati Ins. Co., No. 52872

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtMARSHALL; QUILLIAN, P.J., and McMURRAY
Citation141 Ga.App. 106,232 S.E.2d 621
PartiesM. F. MUNDY v. CINCINNATI INSURANCE COMPANY et al
Decision Date27 January 1977
Docket NumberNo. 2,No. 52872

Page 621

232 S.E.2d 621
141 Ga.App. 106
M. F. MUNDY
v.
CINCINNATI INSURANCE COMPANY et al.
No. 52872.
Court of Appeals of Georgia, Division No. 2.
Jan. 27, 1977.

Page 623

[141 Ga.App. 111] George N. Sparrow, Jr., E. Wayne Wallhauser, East Point, for appellant.

Page 624

Savell, Williams, Cox & Angel, Edward L. Savell, William S. Goodman, Atlanta, Jones, Wilson & Tomlinson, John J. Jones, John E. Tomlinson, Decatur, for appellees.

[141 Ga.App. 106] MARSHALL, Judge.

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 [141 Ga.App. 107] 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 [141 Ga.App. 108] 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

Page 625

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., ...

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9 practice notes
  • Johnson v. U.S., No. 76-2197
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 13 Julio 1978
    ...retained the requirement of mutuality in applying principles of res judicata and collateral estoppel. Mundy v. Cincinnati Insurance Co., 141 Ga.App. 106, 232 S.E.2d 621 (1977); King Sales Co. v. McKey, 105 Ga.App. 787, 125 S.E.2d 684 (1962). Thus, since the present appellant was not a party......
  • Bradley v. Godwin, No. 58244
    • United States
    • United States Court of Appeals (Georgia)
    • 21 Febrero 1980
    ...be recovered. See also Empire Banking Co. v. Martin, 133 Ga.App. 115, 119-120, 210 S.E.2d 237 (1974); Mundy v. Cincinnati Ins. Co., 141 Ga.App. 106, 110(6), 232 S.E.2d 621 (1977); Housing Authority v. Starcher, 149 Ga.App. 402, 403(4), 254 S.E.2d 515 (1979); Wallace v. Bleakman, 131 Ga.App.......
  • Metropolitan Atlanta Rapid Transit Authority v. Tuck, Nos. 63810
    • United States
    • United States Court of Appeals (Georgia)
    • 29 Junio 1982
    ...to issues which were decided in favor of appellant, any such errors are harmless to appellant. [Cits.]" Mundy v. Cincinnati Ins. Co., 141 Ga.App. 106, 108(1), 232 S.E.2d 621 (1977). Accordingly, the cross-appeal is affirmed as to the judgment for S. J. Tuck. The cross-appeal will therefore ......
  • Cline v. Kehs, No. 55416
    • United States
    • Georgia Court of Appeals
    • 22 Junio 1978
    ...plaintiff could not have been prejudiced by the failure to give the charges which bear on that issue. Mundy v. Cincinnati Ins. Co., 141 Ga.App. 106, 232 S.E.2d 621. (c) Finally, plaintiff contends that the trial court [146 Ga.App. 352] failed to charge on comparative negligence as requested......
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9 cases
  • Johnson v. U.S., No. 76-2197
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 13 Julio 1978
    ...retained the requirement of mutuality in applying principles of res judicata and collateral estoppel. Mundy v. Cincinnati Insurance Co., 141 Ga.App. 106, 232 S.E.2d 621 (1977); King Sales Co. v. McKey, 105 Ga.App. 787, 125 S.E.2d 684 (1962). Thus, since the present appellant was not a party......
  • Bradley v. Godwin, No. 58244
    • United States
    • United States Court of Appeals (Georgia)
    • 21 Febrero 1980
    ...be recovered. See also Empire Banking Co. v. Martin, 133 Ga.App. 115, 119-120, 210 S.E.2d 237 (1974); Mundy v. Cincinnati Ins. Co., 141 Ga.App. 106, 110(6), 232 S.E.2d 621 (1977); Housing Authority v. Starcher, 149 Ga.App. 402, 403(4), 254 S.E.2d 515 (1979); Wallace v. Bleakman, 131 Ga.App.......
  • Metropolitan Atlanta Rapid Transit Authority v. Tuck, Nos. 63810
    • United States
    • United States Court of Appeals (Georgia)
    • 29 Junio 1982
    ...to issues which were decided in favor of appellant, any such errors are harmless to appellant. [Cits.]" Mundy v. Cincinnati Ins. Co., 141 Ga.App. 106, 108(1), 232 S.E.2d 621 (1977). Accordingly, the cross-appeal is affirmed as to the judgment for S. J. Tuck. The cross-appeal will therefore ......
  • Cline v. Kehs, No. 55416
    • United States
    • Georgia Court of Appeals
    • 22 Junio 1978
    ...plaintiff could not have been prejudiced by the failure to give the charges which bear on that issue. Mundy v. Cincinnati Ins. Co., 141 Ga.App. 106, 232 S.E.2d 621. (c) Finally, plaintiff contends that the trial court [146 Ga.App. 352] failed to charge on comparative negligence as requested......
  • Request a trial to view additional results

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