DECIDED DECEMBER 4, 1961. REHEARING DENIED DECEMBER 13, 1961.
Action for damages, etc. Fulton Superior Court. Before Judge Moore.
Howard Storey, James C. Howard, for plaintiff in error.
Maurice N. Maloof, George A. Durden, Smith, Field, Ringel, Martin Carr, R. E. Lee Field, contra.
1, 2. The petition having been held by the Supreme Court to state a cause of action in deceit against the defendant individually, neither the lack of a contract of insurance in writing nor the question whether defendant's principal consented to his being a dual agent is material, as his liability stems from tort, not agency or contract.
3, 4, 5. The evidence supported the verdict, and the motion for new trial was properly overruled on all grounds.
6. Where the petition states a cause of action for deceit, it is proper for the trial court to charge the jury on the law of punitive damages.
DECIDED DECEMBER 4, 1961 — REHEARING DENIED DECEMBER 13, 1961.
The plaintiff brought action against the Georgia Casualty Surety Co. and Walter Kelly for damages, charging Kelly individually and the Georgia Casualty Surety Co., through Kelly, as agent, with fraud and deceit, alleging that Kelly informed the plaintiff that she was insured in the defendant company and that certain real and personal property was protected against loss by fire when in fact it was not. The property burned the following day, whereupon the plaintiff brought this action for the loss sustained. To the petition as amended the defendant Kelly filed general and special demurrers. The trial court overruled the demurrers, to which order exceptions were taken.
At the close of the plaintiff's evidence, the trial court granted a nonsuit as to the defendant Georgia Casualty Surety Co. The defendant Kelly made an oral motion for a directed verdict at the conclusion of all the testimony which motion was overruled. The jury returned a verdict for the plaintiff against Kelly, whereupon he filed a written motion for judgment notwithstanding the verdict and a motion, as amended, for a new trial. The motion for judgment notwithstanding the verdict was amended to add the following: (1) that there is no evidence to show that the Georgia Casualty Co. ever consented for Kelly to be a dual agent; furthermore, that no contract of insurance was ever issued; and (2) that under the law a contract of insurance must be in writing, and that, since he was bound to have that knowledge, there was no reason for him to have believed that any representations by the defendant, if they were false, were true because he was bound to know that they were false, chargeable with the knowledge of the law, that is, that evidence of coverage must be in writing.
By amendment, substantially similar grounds were added to the motion for a new trial.
The motions for judgment notwithstanding the verdict and for a new trial were overruled, to which rulings exceptions were taken.
The defendant having died during the pendency of the appeal, upon motion of counsel, his widow, executrix of his estate, was substituted as the plaintiff in error.
1. In Clark v. Kelly, 217 Ga. 449 ( 122 S.E.2d 731), the Supreme Court, Chief Justice Duckworth dissenting, in reversing the decision of this court in Kelly v. Ga. Cas. Surety Co., 104 Ga. App. 167 ( 121 S.E.2d 313), held that the present petition stated a cause of action for deceit. In view of this holding the trial court properly overruled the general demurrer.
2. The defendant's motion for judgment notwithstanding the verdict as amended contended, firstly, that the plaintiff cannot recover on the contract because all contracts of insurance must be in writing, and there being no evidence to show that the insurer ever consented for the defendant to be a dual agent and since no contract of insurance was ever issued, the defendant is not liable. This ground is without merit, since the petition was approved by the Supreme Court as stating a cause of action for deceit. Deceit is not an action in contract, nor is it based upon the defendant's agency.
3. The second ground of the motion for judgment notwithstanding the verdict was on the basis that there was no proof of any fraud shown on the part of the defendant. The evidence adduced in the trial substantially supported the allegations of the petition as to the alleged deceit. The conflicts in the evidence were for the jury, which resolved them against the defendant. The trial court did not err in overruling the motion for judgment notwithstanding the verdict.
4. The motion for new trial was properly overruled on the general grounds. Grounds 1, 2, and 3 of the amended motion for new trial, which raise contentions respecting dual agency, that the defendant made no undertaking individually, or was acting as agent for the insurer, are all foreclosed by the Supreme Court's ruling that the petition stated a cause of action against him individually for deceit.
5. Ground 4 of the amended motion for new trial contends that the evidence was insufficient to establish an action for deceit because the question of whether a risk is insured is a question of law, not of fact, and further that there was no moral guilt on the part of the defendant. These were questions decided adversely to the defendant by the Supreme Court in holding that he would be liable for his misrepresentation of the fact that the property was insured when it was not.
6. It is contended that the court erred in charging the law of punitive damages. There is no merit in this contention. Where the petition stated a cause of action for deceit, it is proper to charge the jury on the law of punitive damages ( Aderhold v. Zimmer, 86 Ga. App. 204, 71 S.E.2d 270), since in such a case the question is for the jury whether the aggravating circumstances of the alleged tort warrant the award to the plaintiff of punitive damages. Code § 105-2002.
7. The judgment of this court in Kelly v. Ga. Cas. Surety Co., 104 Ga. App. 167, supra, is hereby vacated, and the judgment of the Supreme Court in Clark v. Kelly, decided 217 Ga. 449, supra, is made the judgment of this court.
The other assignments of error are without merit or were not argued and are thus deemed abandoned.
Judgments affirmed. Felton, C. J., and Nichols, J., concur.