57 Ga. App. 500 | Ga. Ct. App. | 1938
Lead Opinion
Foremost Dairies Incorporated brought suit against. Campbell Coal Company in the municipal court of Atlanta, Fulton section, to recover for damage to an automobile truck belonging to the plaintiff, alleged to have been caused by the defendant’s negligent operation of its truck which collided with the plaintiff’s truck at a public street intersection in the City of Atlanta. The defendant in its plea denied liability. It alleged that its truck, as a result of the collision with the plaintiff’s truck, was damaged to the amount of $134.53, and pleaded in bar an alleged agreement in settlement by the plaintiff, Foremost Dairies Incorporated, “ acting by and through its insurance carrier, the Liberty Mutual Insurance Company,” by which the defendant Campbell Coal Company accepted the sum of $134.53 in settlement of all claims and demands which the defendant Campbell Coal Company had against the plaintiff, Foremost Dairies Incorporated, resulting from any negligence on the part of Foremost Dairies Incorporated at the time and place referred to in the plaintiff’s petition. The defendant alleged that this agreement was in accord and satisfaction, and in full and complete settlement between the plaintiff
The plaintiff’s motion to strike the defendant’s plea of an agreement in accord and satisfaction in bar of the plaintiff’s suit was overruled, but the plaintiff did not except. The issue made by the
It is contended by counsel for the defendant that the judgment of the court overruling the plaintiff’s motion to strike the defendant’s plea, which judgment is unexcepted to, amounts to an adjudication that the plea sets up an agreement in satisfaction of the plaintiff’s claims and demands against the defendant, and therefore constitutes a valid plea in bar as a defense. If the ruling on demurrer adjudicates anything it is only that the contract which was executed by Liberty Mutual Insurance Company with Campbell Coal Company constitutes a satisfaction of all claims which Campbell Coal Company may have against Foremost Dairies Incorporated growing out of the accident, provided the contract was executed for and in behalf of Foremost Dairies Incorporated by and through Liberty Mutual Insurance Company as its agent to make the contract of settlement.
The only question presented for the court’s consideration arises under the general grounds of the plaintiff’s motion for new trial, and it is whether or not the evidence is sufficient to authorize a finding by the court that Liberty Mutual Insurance Company, when making the settlement with the defendant Campbell Coal Company, was acting as an agent for the plaintiff Foremost Dairies Incorporated, with authority to bind the plaintiff Foremost Dairies Incorporated, by the agreement. It appears from the undisputed and uncontradicted evidence as contained in the testimony of Mr.
It therefore appears from the uncontradicted and undisputed testimony conclusively, as a matter of law, that Liberty Mutual Insurance Company, in making the settlement with Campbell Coal Company, did so on its own account and without any direction from Foremost Dairies. It is well settled that where, under an insurance policy which insures the insured against loss arising from claims for damages growing out of an accident covered by the policjq the company, when settling such claim, although the contract of settlement releases the insured from all liability, does not act as the agent of the insured. In Burnham v. Williams, 198 Mo. App. 18 (194 S. W. 751), which was a case similar to the case at bar, where the plaintiff sued and recovered a judgment against the defendant for damage to the plaintiff’s automobile in which the plaintiff was riding, as a result of the alleged negligence of the defendant in the operation of the defendant’s automobile, and the plaintiff’s insurance company which had insured the plaintiff against liability arising out of such an accident effected a settlement with the driver of the defendant’s automobile, who was injured in the accident, whereby the person settled with released and discharged the plaintiff from all liability to him growing out of the accident, and this settlement was as in the case at bar pleaded by the defendant in bar of the plaintiff’s right to -recover against the defendant for the damage caused to the plaintiff’s automobile,
It therefore appears conclusively and without contradiction from the evidence that Liberty Mutual Insurance Company, in making this settlement, did not act as the agent of Foremost Dairies Incorporated, unless what Mr. Marshall of Foremost Dairies stated
Since Liberty Mutual Insurance Company in negotiating a settlement with Campbell Coal Company had no knowledge, so far as it appears, that Campbell Coal Company had been referred to Liberty Mutual Insurance Company by Foremost Dairies Incorporated, whether or not the act of Foremost Dairies Incorporated in referring Campbell Coal .Company to Liberty Mutual Insurance Company could be construed as authorizing Campbell Coal Company to deal with Liberty Mutual Insurance Company as agent for Foremost Dairies Incorporated, Liberty Mutual Insurance Company when dealing with Campbell Coal Company did not purport to act as agent for Foremost Dairies Incorporated. Since Liberty Mutual Insurance Company had no authority as agent of Foremost Dairies Incorporated to deal with Campbell Coal Company and effect a settlement of Campbell Coal Company’s claim against Foremost Dairies Incorporated, and since the contract was not made with Campbell Coal Company by Liberty Mutual Insurance Company acting as agent for Foremost Dairies Incorporated, the contract is not binding on Foremost Dairies Incorporated as one executed by Liberty Mutual Insurance Company as its agent.
If Liberty Mutual Insurance Company purported to act as agent for Foremost Dairies Incorporated in negotiating the settlement which it made in behalf of Foremost Dairies Incorporated with Campbell Coal Company, Liberty Mutual Insurance Company’s act in so doing was never ratified by Foremost Dairies Incorporated. It appears conclusively and without dispute from the testimony of Mr. Marshall of Foremost Dairies Incorporated, that he did not know about the settlement until some time after it was made. It does not appear that after he found out about the settlement Foremost Dairies Incorporated did anything in connection therewith. It therefore appears from the uncontradicted and undisputed testimony that Liberty Mutual Insurance Company in effecting a settlement with Campbell Coal Company was not in so doing acting as agent for Foremost Dairies Incorporated, but was acting for itself and Foremost Dairies Incorporated is not bound by the settlement. The verdict for the defendant sustaining its plea of settlement in bar of the plaintiff’s action was unauthorized.
Judgment reversed.
Dissenting Opinion
dissenting. Luther Tatum of the Campbell Coal Company testified that he investigated the accident in which a truck of the Foremost Dairies Inc. collided with a truck of the Campbell Coal Company, and took the matter up with Harry Marshall of Foremost Dairies Inc., and that Marshall referred him to the Liberty Mutual Insurance Company for the handling of the claim. H. K. Dickson, claim agent .of the Liberty Mutual Insurance Company testified that, at the instance of Harry Marshall of the Foremost Dairies Inc., he investigated the accident in question. Harry Marshall, vice-president and treasurer of Foremost Dairies Inc., testified that he talked with Luther Tatum of the Campbell Coal Company about the accident in which the Campbell Coal Company truck was damaged, and that he referred the Campbell Coal Company to the Liberty Mutual Insurance Company for the handling of the claim for damages to said truck.
Soon after the accident in question occurred, when the Campbell Coal Company approached Foremost Dairies Inc. for an adjustment or settlement of this claim for damages to the truck, Marshall, vice-president and treasurer of F'oremost Dairies Inc., referred Campbell Coal Company to Liberty Mutual Insurance Company for the handling of this claim. By doing so Foremost Dairies Inc., in effect, said: “Liberty Mutual Insurance Company is my insurance carrier, and I refer you to it, without reservation and with full authority to investigate and adjust or settle your claim.” Foremost Dairies Inc. was not then making any claim for damages against Campbell Coal Company on account of the accident in question, and made no objections to a settlement by its insurance carrier of the claim of Campbell Coal Company. Foremost Dairies Inc. held the insurance company out as its agent to Campbell Coal Company, apparently with full authority, to settle with the latter for its claim for damages occasioned by the collision of the trucks of the two companies. “‘A principal is bound by the acts of his agent, within the authority he has actually given him, which includes not only the precise act expressly authorized to be done, but also whatever usually belongs to the doing of it, or is necessary to its performance. Beyond that
Under the facts of this case,' I think the trial court was authorized to find that the insurance company acted for and as the agent of Foremost Dairies Inc. in settling with Campbell Coal Company, and that Foremost Dairies Inc. is now estopped from denying that relationship; and, consequently, would be precluded from recovering against the defendant in this suit. The case at bar is distinguishable on its facts from the cases cited in the majority opinion of this court.