*1 567 defense, In . . . asserting entrapment ... dictment admits the commission of the offense while accused [the] inclined to commit the offense before denying enforcement ac- agent. the intervention law choose, evidence therefore, where the cused must en- to assert entrapment, a case of whether ele- defense, the other trapment thereby admitting State, App. v. 130 Ga. 659 ments of the crime.” Reed (204 SE2d testimony in his admitted
Here the defendant offense, entrapment the defense of committing failed, to be interposed and the evidence utterly re- verdict, manded the harmless guilty rendering State, error. v. maining Pennington enumerations 327) (161 701, cited; 117 Ga. 704 SE2d cases App. (80 State, 536, 76); 89 Thaxton v. Ga. 538 SE2d App. State, 445, Robertson v. 95 Ga. 447 App. State, v. 130 Of
Cauley App. Ga. 278 the "harmless error” rule here had apply course would an issuable defense of been raised. entrapment J., Quillian, Judgment P. concurs. affirmed. J., judgment only. concurs Argued May 10, 30, 1974 October 1974 Decided Rehearing denied December Horn,
Al appellant. Eldridge Fleming, Attorney, W. District William F. Lee, Assistant District Attorney, appellee. INSURANCE COMPANY v.
49535. ALLSTATE
HARRIS. Judge.
Evans, Company On Allstate Insurance January liability of insurance various containing issued a the Chrysler to certain dealer coverages corporations Marketing Chrysler Corporation Motor Corporation which included Bill Program, Investment Inc., City, Augusta, Georgia.
On Saturday, January 17, was in effect, Bryan Gray, full force and on which date James Carolina, friend, a young resident of South soldier Palmer, Chuck while on a three-day *2 drinking spree, Bill Jones Inc. to look at Dodge City, visited automobiles. ob- Gray negotiated purchase a of automobile and tained of a 1970 from He con- Jones. it, tended he had no intention but two buying gave of checks, $3,800, a one and one for on non-existent $25 $3,800 bank account of the automobile. The $3,800 figures, check was for as to the but for as only $38 portion. negotiations, written and before During delivery automobile, of the Palmer Gray left at Dodge so might store, contends, he to a as City, go liquor although Jones contends he left to arrange insurance Gray automobile. call admits he did and dealership represent himself be an fictitiously to Bath, South Carolina. then agent Jones turned the proposed automobile over to Palmer deliver Gray. Gray return was to the following Monday. No kind to him to papers any Palmer. date, Gray, on same passengers with several while driving influence of intoxicants, at an of speed, excessive rate on the wrong side of the Gordon Highway Richmond County, Georgia, collided Harris, automobile driven Alvin by Jr. Harris, Mrs. Connie Mobley Harris, wife Alvin was a passenger in the Harris car. Both husband and suf- wife personal fered injuries.
A bill of sale and the transfer of the manufacturer’s statement origin of the automobile from to Gray Jones were thereafter prepared by completed Jones and (dated "1-20-70”). following Tuesday This was days four after the collision.
Connie Mobley Gray, Harris sued James Bryan alleging be defendant a nonresident of con- Georgia, tending he was driving the car of the insured, alleged Jones. She sought damages for her own personal injuries and loss of consortium of her by reason husband’s injuries. amendment, Bill By as a second original complaint Inc. was added to the City, defendant, because of Jones’ entrustment driver, unfit to drive reason incompetent vehicle to an intoxication. She also falsifications alleged of his the vehicle by of certain records to show an actual sale of Gray. Jones to answer,
Defendant did not and the case became Gray answered, in default as to him. Defendant admitted but denied the remainder jurisdiction complaint, alleged completed sale to and that was thus not the car driving "permission” Jones. trial,
After was returned against ($16,000 Gray only, $24,000 fendant as actual dam- ages punitive as Plaintiff then damages). (Allstate) made a demand the insurance company which refused to
Plaintiff filed suit the Allstate Insurance Company as the insurer under
policy was in full force and effect at the time of the *3 injuries. Plaintiff also sought to recover punitive damages of 25% of ($6,900) the judgment as attorney (Ga. fees, under § Code Ann. 289,502; 56-1206 L. pp. 1962, p. suit,
Allstate answered this admitted jurisdiction, and that judgment had been recovered against Gray that plaintiff had demanded Allstate. De- fendant denied liability and contended the sale to Gray in resulted no coverage under its It pleaded also estoppel by judgment in that no had been returned against insured, Jones; its and since plaintiff was not the holder of the insurance it was not entitled to 25% penalty or fees for bad faith. attorney
After discovery and stipulation evidence, of certain motions for summary judgment were filed by parties. both Both plaintiff and defendant amended their pleadings before the final hearing of the motions for summary In this action plaintiff expenses litigation and attorney fees bad by reason of faith of the insurer to evade its liability § under Code Defendant, amendment, 20-1404. by its defended on the ground Jones; was in privity with and that no question litigated it; Jones could be relitigated and that the question of possession of the automobile had been determined to be in not Jones as a result of the first suit.
After a hearing, the court granted partial summary favor of the plaintiff as the amount of the the former ($24,000), case leaving jury determination the question of punitive damages. court overruled defendant’s motion summary judgment. Defendant appeals. Held:
1. In the tort action, judgment was returned against defendant Gray, but not against defendant Jones. But for the negligence of these defendants to have been imputed (defendant to another Allstate), then Allstate must have been in privity with one of them so as to create the relation of principal and agent. Code 105-205. No such re lationship existed between any parties tort, these and there is no privity as between the defendant Allstate and Gray Jones, but only as to possible coverage under the liability policy of insurance then in effect. Whether or there is coverage under the policy remains consideration aby jury from the facts since more than one inference may be drawn from the evidence. Holland v. Corp., 106 Ga. App. 4, 6 Sanfax McCarty v. Co., (1) National &c. Ins. 107 Ga. App. Life Each party seeks to assert that a judgment of a court of competent jurisdiction shall be conclusive between the parties same and their privies as to all put matters issue or which might have put issue. Code 110-501. But same is not absolutely shown beyond per- adventure by the evidence submitted at the first trial of the tort action. For if only there be no coverage as to Gray can there be a no privity.
if owned by Jones with Gray as permissive user, would *4 show coverage privity between the parties under the policy of insurance. While Gray is not a "named insured” within the meaning of the policy, or the holder of the could be an insured person for the policy insures those driving the car of the named insured. plaintiff Since be a may beneficiary under the policy by reason of defendant Gray’s coverage, as a
571 as to whether or user, of fact remain questions permissive a provisions under the not there is toward favorably most must be construed policy if in anywise ambiguous. it is the insurer (Ga. 667); 289, Code 1960, L. pp. Ann. 56-2419 Code (2) Co., 154 653 20-701; v. Mutual Ins. Ga. Johnson Life Milton, (115 Co. v. 160 Ga. Penn Mutual Ins. SE Life 140). 168, 171 SE for jury of fact remain Many questions 2. sale, case, for if as the in this there was termination evidence, would not infer from the then jury might sale, then, course, If there no be a user. permissive within his was allowed to have the automobile Therefore, as a user. the court summary denied defendant’s motion properly summary but erred in judgment, granting partial Holland v. plaintiff. favor of See Sanfax McCarty 106 v. National Corp., App. supra; Ga. Life Co., (1), App. supra. &c. Ins. 107 Ga. 178 3. A not be held liability company may liable to a who has possible beneficiary insured for bad judgment against obtained a faith, fraud or of the insured negligence part to settle the with this who is failing beneficiary the contract with the not the holder in this case is not a proposed beneficiary insured. contract, to the insurance party complain the insurer negligence, fraud or bad faith of Newton, the claim. Francis v. 75 Ga. refusing App. (1) (43 v. Fireman’s Ins. 341 See also Leonard Co., 434, Therefore, 100 Ga. 437 App. to this should have partial summary judgment as issue favor of defendant. granted Judgment part. and reversed part affirmed J., Webb., J., P. concur specially. July Argued 4, 1974 Decided December Rehearing denied December Jr., Childs, Childs, Allgood appellant. & T. Allen B. George Rushing, appellee. *5 Presiding Judge, concurring specially.
I feel that some additional statement of facts is necessary in order to properly understand the results reached and the how results are reached. The action is against an insurance carrier and one, obtained in judgment against Gray, prior tort action. This tort action was brought against Gray alleging of an negligent operation automobile. Bill Jones Dodge City, Inc., was later as a party-defendant added and a recovery on the basis of against negligent entrustment of the automobile Jones by Gray. to Gray failed and to answer became in default.
answered, on defending grounds the that it had the sold Gray, entrustment, automobile to there was no and that proximate the sole cause was one negligence of trial, other than Dodge. Upon the jury the found $16,000 general of damages punitive and damages $8,000 against Gray only. company, refused to the pay
and followed, action seeking recovery $24,000 and attorney fees for bad faith pay refusal within 60 days after demand under Code Ann. 56-1206. up insurer, defenses set by addition denial of were liability, to the effect that a sale had taken (of place the automobile to Gray) and thus not a Gray permissive an user of owned automobile as defined in the comprehensive coverage provisions of the policy; that garage provisions of the policy as to the of a permissive definition, user user qualify area, by excluding the "possession automobile which has been transferred to another named ” insured pursuant to an agreement of sale... The insurer also defended the ground on the prior determined as an "necessarily essential element of such Bill Inc., Dodge City, had sold surrendered the the said under sale, agreement of Bryan Gray”; said James also that penalties and attorney fees not recoverable the insured under action Code Ann. 56-1206. amendment,
By another defense was filed alleging the permission to drive the was obtained automobile excludable from and deceit fraud and after summary judgment moved for a Both sides transcript introduction of an entire hearing motion defendant’s action, the trial overruled judge plaintiffs partially granted summary judgment for the recovered by granting judgment motion action, damages leaving only question the prior demand to on refusing fees for bad faith attorney jury. be decided *6 majority opinion, in the
In addition to the facts stated he and Palmer had disclosed that testimony Gray the days nights prior for two drinking together changed 17, 1970, and had not bathed Saturday, June on drinking time and were clothes or shaved that during after the It also that Dodge. appeared at Jones day the given of the automobile was check larger of the bank on which made of an official manager inquiry drawn, the official knew about nothing the check was but He was that his father was well-to-do. Gray, except was unable to the check or the account as the bank verify take the then decided to day. manager closed on that only paper signed risk of the check being good. the order which January purchase dated was an Other approval Dodge. papers requiring bore 17,1970. him Gray’s signature signed by January on These were to taxes on the automobile papers relating Carolina, for title to the State the application of South however, state in lived. It further Gray appears, which in due that these were filled out papers by stenographer 20, 1970. A January course of business on Tuesday, bill of sale was also purported signed by January handling dated 1970. The reason that no was typist the transaction this manner was took to wit: day place, the transaction It the January appears manager 1970. further the occurrence of and others at Jones had notice of the wreck on the 19th. Other Monday morning, sometime accident, Dodge, disclosed that'after the testimony insurer, took of the occurrence the upon investigation as to positions two different on different occasions was delivery whether the of the automobile complete intended to be a sale at that time or not. At this point, we think it could be stated that the evidence concept sustained the that inasmuch as the documents completed Monday, Gray permitted couldnot be until was securing to take of the car his (which on the automobile he advised them that he had by pretending agent, secured to be the insurance in a call) telephone expectation understanding with the Monday pick up papers. that he return on agree by majority I with the conclusions reached holding prior verdict and was judicata estoppel by judgment neither res nor as between parties except case, as to the amount of judgment, agree everything such however, I do not deciding. prior jury that was said in so In the suit the could negligent driving have found that while insurance) Dodge (coverage by ofJones guilty but that Jones was not entrustment (Jones liable), jury not sothe release of Jones in the prior necessarily adjudication case was not of facts which would release the insurer. On hand, the other jury case could have found there was a completed Gray releasing holding sale, thus Jones and still damages. type
liable for This would have released the insurer. The record in case, *7 disclosing jury, which fact or facts were found we must hold that such facts as would have released the necessity insurer were not of so found in the verdict or necessary for the verdict to found, have been and under say these circumstances we cannot the verdict and judgment was a bar to the action judgment insurer. For I these reasons concur in the reversing judge’s grant partial summary the trial of a plaintiff judgment affirming and the the to the summary relating denial of for defendant effect of the action and the verdict and thereon. might majority opinion
I further, add that the does upon not rule insurer as to other conténtions the defendant
why summary judgment the denial aof it improper. as to the merits of the case was One of these is the contention of the defendant insurer that the evidence to use possession finding demands Dodge, fraud from automobile was secured that such foreign authority citation of relies deciding without Assuming, a proper ruling. would be if the evidence would be ruling proper such a defrauded, that Jones finding demanded a The evidence here in the case. does not so demand Dodge, that Jones authorize a is sufficient to care, and could have should ordinary exercise of dis- being perpetrated fraud was covered Therefore, automobile. of the of the possession surrender under the defense asserts no reason this my opinion, have a summary the defendant should why evidence the garage is argument presented The other of a exclude from the provisions of the of the user situations where the pursuant automobile was to a contract of sale. This if there be no overlooks the fact that even argument there is policy, garage provision comprehensive be coverage, coverage, no such exclusion. which contains provisions I am state that me in Judge joins authorized to Webb concurrence. special MATTRESS, 49695. BENDLE et al. v. ORTHO INC.