Opinion
37038.
DECIDED FEBRUARY 19, 1958. REHEARING DENIED MARCH 7, 1958.
Action for damages. Richmond Superior Court. Before Judge Anderson. November 5, 1957.
Cumming, Nixon, Eve, Waller Capers, for plaintiff in error.
Oliver, Davis Maner, Fulcher, Fulcher, Hagler Harper, William C. Reed, contra.
The judge did not err in sustaining the general demurrer to the petition.
DECIDED FEBRUARY 19, 1958 — REHEARING DENIED MARCH 7, 1958.
The Sherwin-Williams Company of Georgia brought a suit against St. Paul-Mercury Indemnity Company for damages arising out of alleged misrepresentations made to the plaintiff by an agent of the defendant.
The petition alleged in part that: the defendant was surety on a performance bond for Lester L. Morse who had subcontracted to paint 200 homes in a subdivision; an agent of the plaintiff called a special bond agent of the defendant and asked him if the bond protected the plaintiff from any loss it might incur as a result of Morse's failure to pay for materials purchased from the plaintiff; the special agent of the defendant answered the above question in the affirmative and later wrote the plaintiff a letter to the same effect; the special bond agent had authority to issue the type bond that would have protected the plaintiff; Morse failed to pay for the materials purchased and the plaintiff discovered that the bond did not protect it from loss, but was executed for the sole benefit of the contractor who had subcontracted the work to Morse; as a result of the misrepresentation of the plaintiff's special agent, who knew or should have known of its falsity, the plaintiff suffered a loss of the purchase price of the materials.
The defendant filed a general demurrer which the judge sustained and dismissed the petition. It is to this ruling exception is taken.
1. The petition which seeks to charge the defendant with liability for the act of an agent is fatally defective because it contains no allegation that the servant was acting within the scope of his employment or in the prosecution of his employer's business, and did not show that the nature of the agent's service was such that his authority to perform the act on behalf of his principal could be legitimately inferred. Code § 105-108; Laughlin v. Bon Air Hotel, 85 Ga. App. 43 (2) ( 68 S.E.2d 186); Tate v. Atlantic Ice Coal Corp., 25 Ga. App. 797 (1, 2) ( 104 S.E. 913). While it is true that the petition alleged that he was a special bond agent with authority to issue bonds, this would not necessarily give him authority to act for his principal in advising third parties as to the legal effect of the bonds.
2. The petition is fatally defective for a further reason. When the defendant's agent allegedly advised the plaintiff, with whom no fiduciary relationship existed, that it was protected from loss under the provisions of the bond, he was expressing an opinion of law and this would not constitute actionable fraud. National Life Accident Ins. Co. v. Parker, 67 Ga. App. 1, 8 ( 19 S.E.2d 409); Hart v. Waldo, 117 Ga. 590 ( 43 S.E. 998); Claxton Bank v. Smith, 34 Ga. App. 265 ( 129 S.E. 142); Bernstein v. Peters, 69 Ga. App. 525, 534 ( 26 S.E.2d 192); Christopher v. Whitmire, 199 Ga. 280, 283 ( 34 S.E.2d 100); Howard v. Georgia Home Ins. Co., 102 Ga. 137 ( 29 S.E. 143); Bankers Health Life Ins. Co. v. Givens, 43 Ga. App. 43, 50 ( 157 S.E. 906).
The judge did not err in sustaining the general demurrer and dismissing the suit.
Judgment affirmed. Felton, C.J., and Nichols, J., concur.