Patterson v. Castellaw
| Decision Date | 16 April 1969 |
| Docket Number | No. 44287,No. 2,44287,2 |
| Citation | 168 S.E.2d 838,119 Ga.App. 712 |
| Parties | Dennis PATTERSON v. B. C. CASTELLAW, Jr. et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. A wilful misrepresentation by an insurance broker that he had placed an insurance binder on the plaintiff's automobile, made to a broker known to be acting for the plaintiff in obtaining such insurance, which statement was knowingly false, made to induce the placement of the insurance through his firm, which was relied upon and which resulted in damage to the plaintiff by reason of his uninsured vehicle being afterwards stolen, is sufficient evidence to support a verdict against the defendant for compensatory and punitive damages.
2-4. The special grounds of the motion for new trial are without merit.
B. C. Castellaw, Jr., filed an action in fraud and deceit against the defendants Smith and Patterson, each of whom was an insurance agent representing several companies, on the theory that they had acted in concert to defraud him by accepting his insurance premium and causing him to believe they had insured his automobile against theft, which they had not done, a fact he discovered only after the automobile was stolen. The facts on the trial of the case showed without substantial contradiction that Smith had for a number of years taken care of the insurance needs of the plaintiff's family; that he insured plaintiff's automobile for a year and then notified him that the company involved did not wish to renew coverage; the plaintiff went to Smith's office and it turned out that Smith had no other company willing The jury returned a verdict in favor of Smith and against Patterson for compensatory and punitive damages. Error is enumerated on denying motions for summary judgment notwithstanding the verdict.
to insure Castellaw except at a rate higher than he wished to pay, but Smith had previously been able to place such risks through Patterson who represented other companies and in the plaintiff's presence telephoned Patterson on November 13, 1965, and gave him the facts relevant to coverage. Patterson accepted the risk, stated he could place it, gave the premium information, assured Smith that he was issuing a binder effective as of that moment and would forward the application to the company immediately on receiving it. Castellaw gave Smith his check and the pertinent information; Smith deducted his commission and immediately forwarded the application and premium balance to Patterson. Smith, who testified that he 'got nervous when he didn't have a policy' waited about a week and then called Patterson, who again [119 Ga.App. 714] assured him that the application for insurance had been sent in and the binder was in effect. On November 23 Smith called again. Patterson then admitted he had not sent in the application because of the oversight of an employee, stated the binder was in effect, and assured him he was taking care of it at once. On November 26 he called Smith and asked for Castellaw's note for the balance of the year's premium. Smith demurred, saying that in his experience the insurance company financed these things, and Patterson said that was true but he could finance it personally at no cost to Castellaw and get a kickback from the insurance company. He sent Smith a note, which Smith had Castellaw sign and which was returned about December 5. Meanwhile, Patterson again assured him that the binder was effective. Binders may be issued for 10, 20, or 30 days, and may be renewed, and it is customary for insurance agents to contract in this manner by telephone. Smith had no reason to assume that there was not in fact a binder on the plaintiff's automobile. On December 17 the car was stolen and the lack of insurance became apparent. Smith returned the withheld portion of the premium to the plaintiff and later collected and returned the balance ance retained by Patterson, but Patterson retained the notes.
Peek, Whaley, Blackburn & Haldi, Glenville Haldi, Atlanta, for appellant.
Cochran, Camp, Snipes & Jose, J. A. Cochran, Smyrna, C. E. Thompson, Marietta, for appellees.
1. 'A petition alleging that a defendant insurance agent represented that he had issued a binder insuring certain property when he knew that he had not, or that he promised that he would issue a binder when in fact he had no intention of doing so, that he made the misrepresentations in order to make plaintiff believe that she was insured as of a certain date, when, in fact, she was not, that the plaintiff relied upon the misrepresentations and sustained a loss and damage as a result thereof, states a cause of action for deceit.' Clark v. Kelly, 217 Ga. 449, 122 S.E.2d 731. The proof in this action established that there was no conspiracy or concert of action between the two defendants, nor was there any negligence on the part of Smith, who left the original choice of corporate insurer to Patterson, followed through in his attempts to obtain possession of the policy, and was at all times told by Patterson that the binder was in effect. Patterson, without seriously contending that there is any hiatus in the evidence establishing wilful misrepresentations on his part on which the plaintiff acted to his injury does, however, contend that since the petition was laid on the theory that the two defendants acted in concert to defraud the plaintiff and the proof shows no wrongful act on the part of Smith, the proof does not sustain the allegations. This defense is not tenable for 'Motions of this character are addressed to the discretion of the trial judge; and, unless it can be shown that such discretion has been abused and some positive injury done by the occurrence complained of, the discretion of the trial judge will not be controlled.' Avery v. State, 209 Ga. 116, 128, 70 S.E.2d 716. The careful language in which counsel's indication of his objection was couched suggested that he, too, was doubtful that the jury realized that the words 'adjuster' and 'errors and omissions' referred to liability insurance of the defendant and not to the insurance which had been sought by the plaintiff. The words were themselves words of art, and liability insurance was not the subject of discussion nor was it a subject of the attorney's questions. Where a witness...
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