Render & Hammett v. Hartford Fire Ins. Co.
| Decision Date | 16 April 1925 |
| Docket Number | 15888,15889. |
| Citation | 127 S.E. 902,33 Ga.App. 716 |
| Parties | RENDER & HAMMETT ET AL. v. HARTFORD FIRE INS. CO. HARTFORD FIRE INS. CO. v. RENDER & HAMMETT ET AL. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where the law authorizes service of process upon a principal by service upon the agent, it is the agent's duty, when service is so made, to exercise diligence to notify his principal, and in default thereof the agent will be liable for such damage as the principal may sustain.
Where such agent is a partnership, the partnership may be served by service upon one of the partners, and such service upon the partnership is service upon the principal.
Where a summons of garnishment was directed to a nonresident insurance company having an agent and doing business in one of the counties in this state, the agent being a partnership and it was recited in an entry of service by the officer that he had served the summons upon the company personally by serving a designated person, "agent in charge," and where the person so served was a member of the partnership the entry was amendable so as to show that the service was upon the partnership as the agent in charge of the office or business of the company in the county or district at the time of the service, such being the facts; and the defects therein were curable by judgment.
Conceding (without deciding) that the plaintiff's petition, if construed as proceeding ex delicto, would not set forth a cause of action against the partnership nor against one of the members thereof, it is the rule that, in case of doubt as to whether an action is ex delicto or ex contractu a reviewing court, in dealing with an exception to a judgment sustaining a general demurrer to the petition, "should adopt that construction which will sustain the petition and reject that construction which will defeat it." Citizens' & Southern Bank v. Union Warehouse Co., 157 Ga. 434 (7), 122 S.E. 327.
(a) Thus, if it could be said that it is doubtful whether the present action is ex delicto or ex contractu, it being sustainable as an action ex contractu, it may and should be construed as one of that character if it could not be upheld as an action ex delicto.
(b) The law implies, as a part of the contract by which every agency arises, that the agent agrees to have and exercise towards his principal diligence, loyalty, and absolute good faith and, where the agent is a partnership, the partnership and all its members may be held liable for a violation of such duty by any member, as for a breach of contract.
(c) Where a member of a partnership breaches the duty owing by it to a principal of which the partnership is an agent, the principal in a suit against the partnership for such breach of duty, in the event he establishes his case, will be entitled to a judgment not only against the member who committed the breach, but also against the partnership and all the individual members thereof who are served.
(d) The judgment of the court was correct in so far as the demurrers to the petition were overruled, but it was error to sustain the demurrer as to one of the members of the partnership.
Error from Superior Court, Troup County; C. E. Roop, Judge.
Suit by the Hartford Fire Insurance Company against Render & Hammett a partnership, R. L. Render, and P. M. Hammett. To review the judgment in so far as it overrules a demurrer as to defendant partnership and R. L. Render, such defendants bring error; and to review the judgment in so far as it sustains the judgment as to other defendant, plaintiff brings error. Affirmed on defendants' appeal, and reversed on plaintiff's appeal.
Spalding, MacDougald & Sibley, of Atlanta, and Lovejoy & Mayer, of La Grange, for plaintiffs in error.
L. B. Wyatt, of La Grange, for defendant in error.
BELL, J. (after stating the facts as above).
Whether one of the bills of exceptions should be considered as a main bill and the other as a cross-bill need not be determined. We will, however, consider both bills in one opinion.
We have no hesitancy in holding that, in cases where service upon a principal may be had by service upon his agent, it is the duty of the agent to notify his principal of that fact when service is so made. In the absence of a waiver, a party cannot be held to a suit without service, and, where the law provides for service upon a principal by service upon its agent, it necessarily does so upon the assumption that the agent will notify the principal. The plaintiff in this case was subject to be served in the manner stated. Civil Code 1910, §§ 2563, 2564; Great Eastern Casualty Co. v. Haynie, 16 Ga.App. 643, 85 S.E. 938. If in the present case there was service upon the principal by service upon the partnership, the latter would be liable for damages sustained by the plaintiff principal because of its being compelled to pay a judgment which, according to the averments of the petition, would never have been rendered against it if the agent partnership had duly informed it of the service. Cf. Civil Code 1910, §§ 4627, 3581; Wood v. Isom, 68 Ga. 417 (4); Wright v. Central R. Co., 16 Ga. 38 (3); Georgia, etc., Ry. Co. v. Jossey, 105 Ga. 271, 31 S.E. 179.
2. Service upon one member of a partnership is service upon the firm (Civil Code of 1910, § 3167; Ferry & Co. v. Mattox, 2 Ga.App. 104 [3], 58 S.E. 291), and, since the firm was the plaintiff's agent, service upon the firm was service upon the plaintiff. In other words, where a principal may be served by service upon its agent, and its agent is a partnership, the service upon the principal may be perfected by service upon one of the members of the partnership. Cf. 30 Cyc. 478; 2 C.J. 669.
3. But it is claimed by the defendants that the entry of the officer in the garnishment proceeding is fatally defective as showing service, because it does not appear, as required by the Civil Code, § 5270, that the agent served was in charge of the office or business of the corporation in the county or district at the time of the service. It would seem that the word "agent," following the name of the person to whom the writ was delivered, was merely descriptive, and that the entry did not show service upon him in the capacity of agent. The defendants rely principally upon the decisions of the Supreme Court in Southern Railway Co. v. Hagan, 103 Ga. 564 (1), 29 S.E. 760; Holbrook v. Evansville etc., R. Co., 114 Ga. 4, 39 S.E. 938. These decisions are to the effect that the return of an officer, merely stating that he had served a named railroad company with a summons of garnishment by serving a designated person, without describing that person as the agent in charge of the office or business of the company in the county or district wherein the service was made, will not afford a basis for entering a judgment against the company for failure to answer. The two cases cited appear to be identical in their facts, and the Hagan Case was distinguished in Jones v. Bibb Brick Co., 120 Ga. 321, 48 S.E. 25. Where a garnishee has been actually served, and judgment has gone against him upon his failure to answer, he cannot afterwards avoid the judgment merely because the return may have been defective in the particulars indicated above. In such a case the entry will be regarded as an irregular or incomplete return of good service. The plaintiff has made an allegation that it was served; the meaning of which is that the person or firm served was, in fact, its agent, in charge of its business in the county wherein the service was made. In these circumstances the defects in the entry could have been cured before judgment by an amendment. After judgment, amendment was not necessary. See Jones v. Bibb Brick Co., supra; Tifton Compress Co. v. Robinson, 31 Ga.App. 350 (1), 120 S.E. 701; Seaboard Air Line Ry. v. Davis, 13 Ga.App. 14, 78 S.E. 687; McDuffie Oil...
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