Rogers v. Mckinley

• Decision Date: 18 November 1935
• Docket Number: No. 25000.,25000.
• Citation: 182 S.E. 805,52 Ga.App. 161
• Parties: Rogers. v. Mckinley et al.
• Court: Georgia Court of Appeals

52 Ga.App. 161

182 S.E. 805

Rogers.

v.Mckinley et al.

No. 25000.

Court of Appeals of Georgia, Division No. 2.

Nov. 18, 1935.

Syllabus by Editorial Staff.

Error from Superior Court, Baldwin County; James B. Park, Judge.

Suit by Annell Rogers, by next friend, against A. C. McKinley and others, trading as the McKinley Park Company, Incorporated. Judgment for defendants, plaintiff's motion for a new trial was overruled, and plaintiff brings error.

Reversed.

Cecil A. Baldwin, of Macon, and McCul-lar & McCullar, of Milledgeville, for plaintiff in error.

Sibley & Allen, of Milledgeville, for defendants in error.

Syllabus Opinion by the Court.

SUTTON, Judge.

Plaintiff, by her father as next friend, instituted suit against the defendants trading as McKinley Park Co., Inc., the owners and operators under that name of a public amusement park and swimming pool, in which she sought damages for personal injuries on account of the alleged negligence of the defendants in the operation of such park and swimming pool. The trial resulted in a verdict in favor of the defendants. Plaintiff moved for a new trial, and to the judgment overruling this she excepted and and brought the case to this court, where the judgment of the trial court was reversed because of an error in the charge of the court. Rogers v. McKinley, 48 Ga.App. 262, 172 S.E. 662. On the call of the case for the second trial, plaintiff moved the court to qualify the panel of trial jurors put upon her by purging' the same of any and all employees of, stockholders in, or relatives of stockholders in the United States Fidelity & Guaranty Company, it being asserted by the plaintiff that the defendants carried liability insurance with the named company to cover the kind of accident alleged to have been sustained by the plaintiff, and that any judgment obtained against the defendants would therefore be borne by such company. On the motion to purge it appeared that the insurance company had paid the defendants' attorneys a fee in this case and had paid the appellate court costs incurred when this case was first before this court. It also appeared that the defendants owned and were operating an amusement park and swimming pool for profit, that the defendants were sued as trading under the name of McKinley Park Co., Inc., that they had made application for a charter for McKinley Park, Inc., that on May 2, 1931, prior to the grant of a charter, at the instance and through the negotiations of the defendant McKinley, the insurance company issued and delivered to the acting secretary of the defendants a policy of liability insurance covering accidents to patrons of the park and swimming pool, and on July 2, 1931, the defendants paid the premium to the insurer, that on July 8, 1931, just a short tome before the grant of the charter, plaintiff sustained the accident at the pool that resulted in her injuries, and that a charter was granted to the McKinley Park, Inc., at the July term, 1931, of Baldwin superior court. The designated insured in the policy of liability insurance was "Mc- Kinley Park, Inc." The judge-overruled plaintiff's motion to qualify and purge the jury, passing this order: "The evidence is undisputed that this policy was written in favor of a corporation and not in favor of an individual, and even if they did pay the costs or even if they did pay the attorneys' fees voluntarily, in law they would not be bound for any verdict that might be rendered in this case, in the event there is a verdict rendered by the jury, unless they desire to pay it; they would not be legally bound for it. So, therefore, I hold it would not be proper to ask the jurors whether or not they are employees in this insurance company. So let the 24 jurors come back." The trial resulted in a verdict in favor of the defendants. The plaintiff moved for a new trial on the general grounds, and by amendment added certain special grounds. The judge overruled the motion, and to this judgment she excepts. Held:

1. The motion to dismiss the bill of exceptions on the ground that there is no prayer therein that this court correct the alleged errors of the lower court or for any relief therefrom is without merit. The alleged errors are specified in the-bill of exceptions, with the request that the trial judge certify the bill of exceptions in order that the case "may be carried to the Court of Appeals of Georgia so that the errors alleged to have been committed may be considered and corrected."

2. Those who have dealt with a corporation as such cannot deny its corporate existence. One who has contracted with a corporation as such cannot in an action to enforce the contract set up the invalidity of its corporate existence. Code of 1933, § 22-714; Cason v. State, 16 Ga.App. 820, 829, 86 S.E. 644; Edenfield v. Bank of Millen, 7 Ga. App. 645, 67 S.E. 896; Im-boden v. Etowah, etc., Mining Co, 70 Ga. 86; Collins v. Citizens' Bank, 121 Ga. 513, 49 S.E. 594; Torras v. Raeburn, 108 Ga. 345, 33 S.E. 989; Hall v. Kimsey, 48 Ga. App. 605, 173 S.E. 437. Therefore, an insurance company that issues a policy of liability insurance to a purported corporation, pending its application for corporate charter, and receives from the applicants a premium for such policy, cannot, in an action on the policy for a claim arising after the issuance of the policy but before the grant of the charter, set up the want of corporate existence in the insured at the time of the issuance and delivery of the policy or at the time of the accident giving rise to the claim. Planters', etc. Bank v. Padgett, 69 Ga. 159; Petty v. Brunswick, etc, R. Co, 109 Ga. 666, 35 S.E. 82; Brown v. Atlanta R, etc, Co, 113 Ga. 462, 39 S.E. 71; Hamburg-Bremen Fire Ins. Co. v. Ohio Valley Dry Goods Co., 160 Ky. 252, 169 S.W. 724, Ann.Cas. 1916B, 944; Bon Aqua Imp. Co. v. Standard Fire Ins. Co, 34 W.Va. 764, 12 S.E. 771; 14 C.J. §§ 236, 240,...