Davis v. Penn Mutual Life Insurance, 41 S.E.2d 406

Davis v. Penn Mutual Life Insurance

41 S.E.2d 406 | Ga. | 1947

1. A promissory note executed by a resident of this State, but owned by a non-resident and held by it at its domicile out of the State, is to be taxed here only if derived from or used as an incident of property owned or of a business conducted by the non-resident or its agent in Georgia; and this is true although the note may be secured by a mortgage on land situated in this State.

3. It is not error to exclude immaterial evidence.

No. 15638. JANUARY 9, 1947. REHEARING DENIED FEBRUARY 6, 1947. Duckworth, Presiding Justice, and Head, Justice, being disqualified, Judges Price and Townsend were designated for this case.

On October 22, 1937, Penn Mutual Life Insurance Company, a non-resident corporation with its home office in Philadelphia, filed a petition in the Superior Court of Fulton County, Georgia, against C. H. Gullatt, Reese Perry, and H. W. Gilbert, as members of the Board of Tax Assessors of Fulton County; Standish Thompson, as attorney for the Board of Tax Assessors; Guy Moore, as Fulton County Tax Receiver; and T. E. Suttles, as Fulton County Tax Collector, to enjoin a threatened assessment by the Board of Tax Assessors and its attorney of certain credits belonging to the plaintiff for ad valorem State and county taxes for the years 1931 to 1937, inclusive, to enjoin the tax receiver from entering any assessment against its property on the tax digest, and to enjoin the tax collector from issuing an execution against it with respect thereto. Later, by amendment, the names of C. H. Gullatt and H. W. Gilbert were stricken as parties, and W. Comer Davis and John C. Townley, as successor members of the Board of Tax Assessors, were made parties defendant in their stead. The petition attacked the constitutionality of the statutes under which the tax assessors acted, but by further amendment the plaintiff struck from its petition all allegations concerning the validity of the statutes. The petition as it then stood alleged that the plaintiff had been licensed to carry on a life-insurance business in the State of Georgia, and incident *822 to that business, which had been conducted for more than seven years, it owned valuable property in Fulton County on which it had annually paid all taxes, State and county, required of it. The credits sought to be taxed were not connected in any way with its insurance business. The intangibles involved were evidenced by promissory notes signed by various citizens of Fulton County and secured by deeds to lands located in that county. They were owned by the plaintiff, a non-resident corporation, and held at its domicile in Pennsylvania. They were not derived from or used as an incident of property owned or of a business conducted by the plaintiff or its agent in Georgia. The notes representing the credits referred to were payable at the plaintiff's office in Philadelphia, Pennsylvania, and at no time during the period for which an assessment was threatened had it engaged in any loan business in Georgia or had any agent in the State authorized to invest its funds or to deal in any manner with the notes. During the entire period of time involved, its notes and deeds had been physically situated and kept without the State of Georgia. The taxing authorities of Fulton County had threatened to assess such credits for State and county ad valorem tax, to collect taxes thereon, and that they would do so unless enjoined. Its credits had no tax situs in Georgia for those years, and the imposition of such a tax would violate the due-process clauses of both the State and Federal Constitutions.

The defendants filed general demurrers to the petition as amended, alleging that it stated no cause of action for the relief sought and was without equity. The tax assessors filed an answer admitting that they were preparing to assess the credits represented by the notes owned by the plaintiff and secured by Fulton County real estate; and alleged that the property sought to be assessed for tax purposes arose out of a business conducted by the plaintiff through a local agent in Georgia. The tax receiver answered that he had no intention of making an entry of any assessment against plaintiff's credits, except when the same could be properly done. The tax collector answered that, when the assessments were properly made, he would issue executions. The demurrers were overruled by the trial court. An exception to that judgment brought the case to this court in 1944. This court affirmed the judgment of the lower court. See Davis v. PennMutual Life Ins. Co., 198 Ga. 550. *823

In January, 1946, the plaintiff amended its petition by setting out more fully how the notes were acquired. The amendment alleged in substance: Weyman and Connors, later known as Lipscomb- Weyman-Chapman Company, and afterwards as Lipscomb-Ellis Company, a real-estate dealer or broker of Atlanta, Georgia, would be employed in writing by a prospective borrower as his agent to negotiate a loan to be secured by certain land. Weyman and Connors submitted applications to various lenders. If the application was to be submitted to the plaintiff, Weyman and Connors would send it to Howard D. Graf, a salaried employee of the plaintiff who had an office in Fulton County furnished him by the plaintiff. Graf would inspect the applicant's property and would mail the application and his appraisal to the plaintiff's home office in Philadelphia. The action of the plaintiff's Finance Committee in Philadelphia in accepting, rejecting, or modifying the application was communicated by the plaintiff from its home office to Weyman and Connors. The applicant, through Weyman and Connors, would then arrange with Alston, Alston, Foster and Moise, attorneys at law, of Atlanta, if the terms of the loan were satisfactory to the applicant, for the examination of title and the preparing of the proposed loan papers, at the applicant's expense. The attorneys would mail an opinion of title and the proposed note and loan deed to the plaintiff at Philadelphia. If the title and loan papers were approved by the plaintiff at its home office, it would return the note and loan deed to the attorneys with the plaintiff's check to cover the proceeds of the loan. The attorneys would have the papers signed and would deliver the proceeds of the loan to the borrower, would have the loan deed recorded, and would send all the papers to the plaintiff at Philadelphia, where they were kept at all times except when needed in Fulton County for cancellation, collection, or foreclosure. Neither the attorneys, nor Weyman and Connors (or its successors), nor Graf had authority to approve any application for a loan, or fix the terms of a loan, or to decide for the plaintiff whether or not the value of the property offered as security was sufficient, or to deal with the notes or credits, and they never did so. Graf had no authority to solicit applications for loans or to consummate a loan, and he never did so. The right to pass upon all such questions was at all times in the plaintiff's Finance Committee, which always met in Philadelphia. *824

The court overruled the defendants' renewed general demurrers to the petition as amended in January, 1946. The case was tried in that month before the judge and a jury. There was no disputed issue of fact raised by the evidence. The court directed a verdict for the plaintiff and entered a final decree enjoining the threatened assessment. The defendants' motion for new trial as amended was denied, and they filed their bill of exceptions.

The following undisputed facts were shown by the evidence: the parties stipulated that the plaintiff is a Pennsylvania corporation organized as a life-insurance company; that the defendants had threatened to tax as alleged; that the plaintiff had paid tax on all real estate and other property owned by it in Fulton County, with the exception of the notes and credits referred to; that, to collect the taxes on the credits, the defendants had threatened to seize the property of the plaintiff in Fulton County; that, when the petition was filed and since then, the plaintiff has owned real estate in Fulton County; and that the method used by the plaintiff in acquiring the Jacob Batt loan in 1938 illustrates how the plaintiff acquired all of the loans in question.

The undisputed evidence showed that on January 19, 1938, Jacob Batt signed a written agreement employing Lipscomb-Weyman-Chapman Company, a real-estate broker of Atlanta, as his agent to negotiate, for a consideration of $250, a loan of $12,500 to be secured by a loan deed conveying to a lender, or such person or corporation as Lipscomb-Weyman-Chapman Company might direct, certain property known as 168 Moreland Avenue, N.E., in Atlanta, Georgia. The loan deed was to be a first encumbrance, and Lipscomb-Weyman-Chapman Company was authorized by Batt to have the property appraised and surveyed and the title abstracted. That company would submit applications for loans to various prospective lenders. In this case it decided to have an application signed by Batt submitted to The Penn Mutual Life Insurance Company. The application was directed "To The Penn Mutual Life Insurance Company, Philadelphia, Penna." It showed that there was an outstanding first mortgage of $10,850 on the property in favor of Peoples Savings Bank of Rhode Island. The applicant agreed in the application that he would furnish a full brief of title and would pay all expenses of the loan, including counsel fees, cost of examining property and preparing papers, and that the proposed mortgage was to be a first lien. *825

Lipscomb-Weyman-Chapman Company (later known as Lipscomb-Ellis Company), gave that application, with its inspection report, to Howard D. Graf, a salaried employee of the plaintiff. Graf occupied an office in Atlanta furnished to him by the plaintiff. He has held his present position in Atlanta since 1927. During the past ten years his title in the plaintiff's organization has been "Loan Supervisor," and prior to that it was "Southern Loan Inspector." Graf inspected the property and mailed his report with the application to the plaintiff at its home office in Philadelphia. He never saw or communicated with the applicant either before or after he inspected the property, and he had no further duties in connection with the loan. The plaintiff's Finance Committee was unwilling to make a loan in the amount applied for, but did agree to make a loan of $11,000 on certain terms and so informed Lipscomb-Ellis Company, successor to Lipscomb-Weyman-Chapman Company, by letter mailed from Philadelphia. That company was requested to notify Jacob Batt of the action taken by the plaintiff at its home office in accepting, with modifications, his application for a loan, and to advise the plaintiff whether or not the terms of the proposed loan were acceptable to him.

The applicant informed Lipscomb-Ellis Company, which in turn informed the plaintiff at Philadelphia, that the terms of the proposed loan were satisfactory. At the request of Lipscomb-Ellis Company, the plaintiff from its home office in Philadelphia wrote Alston, Alston, Foster and Moise, Atlanta attorneys, that subject to the conditions specified in the letter, the plaintiff had approved the application of Jacob Batt for a loan of $11,000; that the application came to the plaintiff through Lipscomb-Ellis Company, which would communicate with the Atlanta attorneys; that all expenses connected with the transaction, including the fees of the Atlanta attorneys, were to be borne by the applicant, and that after that had been arranged the attorneys might proceed to examine the title and prepare the papers. Lipscomb-Ellis Company in behalf of the applicant then requested the attorneys to examine the title and prepare the loan papers at the applicant's expense.

The preliminary title report showing the mortgage of $10,850 in favor of Peoples Savings Bank, with an abstract of title, the proposed note and loan deed were mailed on February 17, 1938, by the attorneys to the plaintiff at its home office in Philadelphia *826 with a request that, if the papers were found to be in order, they be returned to them to be signed, and that the plaintiff send them a check for $11,000 "in settlement of the loan." The plaintiff from its home office on March 1, 1938, mailed to the attorneys its check for $11,000 drawn on a Philadelphia bank, payable jointly to them and Jacob Batt, and by letter accompanying the check instructed them that the money was to be appropriated to the payment of prior liens, expenses, including their fees, and the balance to the borrower, but that no part of the fund was to be used until they had ascertained that there was an ample amount to meet each item and that the plaintiff's mortgage would be a first encumbrance.

The plaintiff's check for $11,000 was endorsed by the borrower and by the attorneys and was deposited by them in the Citizens and Southern National Bank of Atlanta, Georgia, to the credit of "Alston, Alston, Foster and Moise, Special Account No. 1." When the loan papers were signed by Jacob Batt, the attorneys drew one check on this bank account for $10,850 payable to the order of Jacob Batt and Leopold J. Haas and Company. This check was endorsed by Batt to the order of Leopold J. Haas and Company, who were correspondents for Peoples Savings Bank, and was delivered to them in full payment of the first mortgage held by Peoples Savings Bank. The attorneys drew another check to the order of Jacob Batt and Lipscomb-Ellis Company for $150, which was endorsed by Batt to Lipscomb-Ellis Company and applied by the latter in part payment of the compensation which Batt had agreed to pay for negotiating the loan. From money obtained from Batt, Lipscomb-Ellis Company paid Alston, Alston, Foster and Moise their fee for examining the title, preparing the papers, and distributing the proceeds of the loan at Batt's direction, so as to enable him to comply with his agreement in his application to make the loan deed to the plaintiff a first encumbrance. The borrower authorized and approved in writing the disbursements made by the attorneys.

The loan was closed in the office of Alston, Alston, Foster and Moise. No employee, agent, or representative of the plaintiff was present at the closing. The attorneys on March 2, 1938, mailed the original note for $11,000 signed by Batt directly to the home office of the plaintiff, and later mailed the recorded loan deed together with the abstract of title and final opinion. *827

The loan papers were kept in Philadelphia until the note was paid. The note was payable to the plaintiff at Philadelphia. Notices of maturity of interest and principal instalments were mailed to the borrower from the plaintiff's home office. Some borrowers made payment to Lipscomb-Ellis Company and others made payment directly to the plaintiff at its home office. Payments which were made to Lipscomb-Ellis Company were either forwarded to the plaintiff in Philadelphia or deposited by that company in a bank in Atlanta to the credit of the plaintiff. No one but officers of the plaintiff at Philadelphia had authority to draw any check on that bank account. None of the plaintiff's loans were closed by check drawn on any bank in Atlanta or Georgia.

On September 3, 1937, the plaintiff and Lipscomb-Ellis Company entered into a "service agreement," which provided that the agreement "shall extend only to the particular loans to which it is the intention of both parties thereto that it should extend," and that the "intention is to be determined only from letters exchanged between the parties stating in effect that the loan in question is to be taken subject to this agreement." The plaintiff wrote Lipscomb-Ellis Company on March 1, 1938, that the Jacob Batt loan was to be under the provisions of the service agreement. Lipscomb-Ellis Company would "service" any loan which the plaintiff and Lipscomb-Ellis agreed should be covered by the service agreement. "Servicing" a loan includes checking the taxes on the real estate to see whether or not they are paid, collecting delinquent interest if notified to do so, and keeping up with fire insurance and seeing that the borrowers keep the buildings insured against fire.

Howard D. Graf, upon being informed by Lipscomb-Ellis Company that a borrower had defaulted in the payment of his note and that the note could not be collected, would make an investigation and inform the company at its home office of the results thereof. In the event that Graf's investigation showed that "the case is hopeless," he would recommend to the plaintiff's home office that the loan deed be foreclosed. Graf did not make collections. When this case was first here in Davis v. Penn Mutual Life Ins.Co., *828 198 Ga. 550 (32 S.E.2d 180, 160 A.L.R. 778), we held that the allegations of the petition as it then stood were sufficient, against general demurrer, to show that the credits sought to be assessed for State and county ad valorem taxes had no situs for such taxation in Fulton County or the State of Georgia. It is now urged that the allegations of an amendment to the petition, which was allowed subsequently to our prior holding, are sufficient to show that the credits have a tax situs in Fulton County, and that for this reason it was error to overrule the general demurrer, renewed to the petition as amended. The defendant in error, however, takes the position that the amendment did not materially change the substance of its petition, but on the contrary only set out in detail the procedure employed in making its loans; and that the petition as finally amended shows that the notes sought to be taxed did not accrue out of or incident to property owned or a business conducted by it or its agent in Georgia. If the amendment last allowed has so completely changed the petition that it now shows that the credits of the plaintiff have a tax situs for State and county purposes in Fulton County, then it was error, of course, to overrule the renewed general demurrer to the petition thus amended; otherwise not. The motion for new trial as amended contains, besides the usual general grounds, nine special grounds, but as we view the writ of error it presents for decision only three questions, namely: (1) Does the amended petition allege a cause of action for the relief sought? (2) Did the court err in directing a verdict for the plaintiff under all the facts and circumstances disclosed by the record? And (3) did the court err in refusing to allow in evidence certain documentary evidence offered by the defendants? We shall deal with these questions in the order stated.

1. This suit was filed on October 22, 1937, and does not involve the amendment adopted in 1937 to art. 7, sec. 2, par. 1 (Code, Ann. Supp., § 2-5001) of the Constitution of 1877, and laws enacted pursuant thereto relating to tax on intangibles; nor does the suit involve art. 7, sec. 1, par. 3 (Code, Ann. Supp., § 2-5403) of the Constitution of 1945. The question here presented must, therefore, be determined under the applicable provisions of the Constitution and laws of this State as they existed prior to June 8, 1937. The constitutional provision of force during the period involved in the instant case is: "All taxation shall be uniform upon the same *829 class of subjects and ad valorem upon all property subject to be taxed within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws." The political jurisdiction of a State does not extend beyond its territorial limits, and therefore it can not lawfully impose a tax upon persons, natural or artificial, or property, residing or situated beyond such limits. A State can not tax where it has jurisdiction over neither the owner nor the property. In such a case the State affords no protection, and there is nothing for which taxation can be the equivalent. Davis v. Penn MutualLife Ins. Co., supra. It is not disputed here that the plaintiff is a non-resident corporation, with its home office in Philadelphia. It is, however, insisted that certain promissory notes owned by the plaintiff are incident to and derived from a loan business conducted by it within the State, and that these items of property are within its taxing jurisdiction. Whether or not such items of property when owned by a non-resident have a tax situs in this State, must necessarily depend upon the facts in each particular case.

It has long been settled by rulings of this court that a promissory note of a citizen of this State, owned by a non-resident and held at his domicile outside of this State, is taxable here, if it accrues out of or is incident to property owned or a business conducted by the non-resident or his agent in Georgia. Armour Packing Co. v. Savannah, 115 Ga. 140 (41 S.E. 237); Armour Packing Co. v. Augusta, 118 Ga. 552 (45 S.E. 424, 98 Am. St. R. 128); Suttles v. Northwestern MutualLife Ins. Co., 193 Ga. 495 (19 S.E.2d 396, 21 S.E.2d 695, 143 A.L.R. 343); Colgate-Palmolive-Peet Co. v. Davis,196 Ga. 681 (27 S.E.2d 326); Northwestern Mutual Life Ins.Co. v. Suttles, 201 Ga. 84 (38 S.E.2d 786); Parke, Davis Co. v. Atlanta, 200 Ga. 296 (36 S.E.2d 773, 163 A.L. R. 976). And it is as equally well settled by the holdings of this court that a promissory note of a citizen of this State, owned by a non-resident and held at his domicile outside of this State, which does not accrue out of or is not incident to property owned or a business conducted by the non-resident, or his agent, in Georgia, has no situs for taxation in this State.Collins v. Miller, 43 Ga. 336; Williams v. Mandell,44 Ga. 26; Carhart v. Paramore, 44 Ga. 262; Cary v.Edmondson, 44 Ga. 651; Columbus Mutual Life Ins. Co. v.Gullatt, and Guardian Life Ins. Co. v. Gullatt, 189 Ga. 747 (8 S.E.2d 38); Suttles *830 v. Associated Mortgage Companies, 193 Ga. 78 (17 S.E.2d 272);National Mortgage Corp. v. Suttles, 194 Ga. 768 (22 S.E.2d 386); Davis v. Metropolitan Life Ins. Co.,196 Ga. 304, 316 (26 S.E.2d 618). As was said by Mr. Justice Grice in the Metropolitan case: "We must regard the law on this subject as having been established, making it unnecessary to blaze any new trials in this field, or to even again mark out the lines. The aforementioned decisions not only point out the landmarks but they make plain the boundaries. The blazes are fresh and are before our eyes. Our object shall be to apply the law to the undisputed facts of this record." True it is, every case of this general type must depend on its own particular facts, because situs can be determined by facts and these only. The notes in the instant case are taxable or not taxable depending upon whether or not they accrue out of or are incident to property owned or a business conducted by the non-resident owner, or his agent, in this State. In our statement of facts we have set out in full the allegations showing the procedure employed in making the loans involved from the time the borrower first contacted the broker in his effort to secure a loan to the time when it was actually closed and the note and loan deed forwarded to plaintiff lender at its home office. It would serve no useful purpose to again state those several acts incident to negotiating and closing the loans. If these allegations show the broker, or plaintiff's loan supervisor, or the firm of attorneys who closed the loan, or any two or more of them, was agent for plaintiff vested with authority in any manner to conduct for it a loan business in this State, then the petition did not state a cause of action for the relief prayed. Suttles v. NorthwesternMutual Life Ins. Co., supra. It was held by this court inDavis v. Metropolitan Life Ins. Co., supra, where an application for a loan was made by a borrower through a broker as its agent and closed by a trust company, also an agent for the borrower, and where procedure almost identical to that here employed was followed in making and closing the loan — that neither was a loan agent of the lender, so as to give the credits involved a tax situs in this State. "By using intermediaries as channels of transmission for papers, relying upon their inspection of property and examination of titles, made at the borrower's instance, and forwarding the money through them also at his instance, the lender does not constitute them his agent to make *831 the loan, and is not chargeable with the consequences of dealings between them and the borrower, whether those dealings be public or private, known or unknown." Merck v. American Freehold c.Co., 79 Ga. 213 (2) (7 S.E. 265). In the Merck case, Mr. Chief Justice Bleckley further said: "Implications of agency are easily overstrained, misapplied, or otherwise abused. . . If he holds control of his capital and decides for himself when he will part with it, and on what terms, and has no terms but lawful interest and good security, and satisfies himself that the security is good, he transacts his own business and is not to be judged by the law of agency."

Applying the principles announced in very recent cases from this court, which we have cited, where efforts were made to tax credits and the loans were made under like procedure, we do not think that the broker who accepted the loan application here involved or the attorneys who closed the loan were agents of the plaintiff, conducting for it such a loan business in this State as would give a tax situs to its loans so made. Both the broker and the attorneys who closed the loan were by express contract employed by the borrower as his agents to obtain and close the loan, and no services rendered by them in connection with the loan had the legal effect of changing the status of agency to one between them and the lender.

Therefore we hold that the allegations in the amended petition did not show that the broker or the firm of attorneys who closed the loan were agents of the lender vested with authority to conduct a loan business for it in Georgia, so as to make its credits taxable in this State.

But what of the plaintiff's salaried loan supervisor Graf, and his connection with the loans? The allegations of the amended petition show that his primary duty was to service the plaintiff's loans after they were made, and upon authority of theMetropolitan case we hold that "the maintenance of an office and agency in this State for the purpose merely of protecting the security and ultimate liquidation of the indebtedness, the papers themselves being sent into this State only when needed for collection, renewal, or foreclosure, would not be using them in this State as an incident of property owned or of a business conducted in Georgia so as to give taxable situs here." Graf rendered no service to his employer in making *832 the loans except to receive the application for a loan from the broker, inspect the property offered as security and transmit the application, together with his inspection report to the home office of the lender. With this done his entire connection with the application terminated. Unlike Durant in the Northwestern case, supra, he had no authority to solicit loans, and he never did, he had no contact or dealings with the borrower, he took no part in the preparation of papers connected with the loan, did not deal in any way with the attorneys who closed the loan, handled no part of the funds loaned, and no communication from the lender, either with the borrower, the broker, or the attorneys who closed it, passed through his office. He was not present on and had no part in the preparation of the application for the loan or when it was approved by the plaintiff's Finance Committee. He took no part in making title investigations or in the preparation of the loan papers, neither was he present nor did he participate in any way with the closing of the loan. His employer did not rely upon him for any of these services in making its loans, but on the contrary trusted the agents of the borrower for this. We can not bring ourselves to believe that the services rendered by Graf in connection with the plaintiff's loans were sufficient to show that it was conducting a loan business in this State through him as an agent, so as to give a tax situs here for its credits.

We think that the court properly found that the petition as amended stated a cause of action for the relief prayed, and therefore did not err in overruling the general demurrer which was renewed to the petition as amended.

2. "Where there is no conflict in the evidence, and that introduced, with all reasonable deductions or inferences therefrom, shall demand a particular verdict, the court may direct the jury to find for the party entitled thereto." Code, § 110-104. The stipulation between the parties and the evidence introduced by the plaintiff showed without dispute that the allegations contained in the petition as amended were true, and as a matter of law they demanded a verdict for the plaintiff. Therefore it was not erroneous for the judge to direct the jury to find for the plaintiff as he did.

3. Complaint is made that the court excluded from evidence a bank book showing a special account maintained by Alston, Alston, Foster Moise, the firm of attorneys who closed the loan here involved, *833 in a named bank. It is insisted that this evidence would have disclosed that the intangibles of the plaintiff were derived from or used as an incident of property owned or a business conducted by the plaintiff in this State. We find ourselves unable to agree with the defendants in this contention. The undisputed evidence shows that the plaintiff in making the loan in question forwarded to the closing attorneys a check for the amount of the loan, payable jointly to them and the borrower, with instructions to disburse the proceeds so that the loan being made would be a first lien on the property offered as security. The borrower endorsed the check to his agents, the closing attorneys, who deposited the same to their special account, without the knowledge or direction of the lender, and immediately disbursed the funds for purposes of the loan. In these circumstances we are unable to understand how this evidence could have illustrated a taxable situs for the plaintiff's loan in this State. It is sufficient to say that this assignment is without merit.

It follows from what has been said in the three preceding divisions that the court did not err in overruling the general demurrer to the amended petition, and in refusing to grant a new trial.

Judgment affirmed. Jenkins, Chief Justice, Bell, Atkinson,and Wyatt, Justices, and Price and Townsend, Judges, concur.Duckworth, Presiding Justice, and Head, Justice, disqualified.