*1 861 “any determinate term sentence” within the minimum and years prescribed maximum number for the offense was cor- rect and in accordance with Section the Determinate Sen- 4 (Ga. 27-2502). pp. 484; tence Act 483, L. 1964, “purely by way spoke the court of illustration” of a While nothing charge determinate sentence in terms of years, prevented jury assessing length of time a fractional part year. Compare Lackey v. State, 116 require 6. not an de- It was abuse the court’s discretion to appellate fendant’s counsel to read decisions to the presence hearing court in of al- jury instead State, lowing counsel directly jury. to read Godwin 598); Clark State, SE v. State, App. 776, Johnson SE Quillian, JJ., Hall and affirmed. Argued September 1968 Decided December Rehearing denied December Wilson, G. Whitney Jack Gautier, J. M. General, Hasty, Solicitor Fred T. appellee. Evans, Jr., FIDELITY SOUTHEASTERN FIRE INSURANCE
COMPANY v. STATE FARM MUTUAL AUTOMOBILE et al.
INSURANCE COMPANY September 19 6 8 Submitted 1968 Decided October Rehearing denied December *2 Thomas & Howard, Hubert H. Howard, for Zorn & Royal, A. Zorn, William Richard Phillips, ap- D. for pellees. Presiding Judge. general The demurrer to the
Jordan, first petition, count of the filed before the effective date of the Civil thereafter, Practice Act and ruled is without merit. greater At the of the it had no than a time status motion practice. to dismiss for a claim under failure state the new original petition The count amply which was the first meets requirements practice stating a claim the notice new for for relief judgment granted, i.e., which by a claim insured was June Ins. Kirkland, See American Southern 118 Ga. Approved Corp., Martin v. Bancredit special Act “to all statutory pro- The Civil Practice ceedings except special statutory pro- to the extent that such ceedings prescribe special practice procedure rules conflict Ann. herewith.” Code 81A-181. Since the Declara- tory Judgment special provisions no pleading, Act contains the test of what is needed to withstand a motion to dismiss petition declaratory judgment is determined under Title 81A of the Code. allegations prayers petition
The clearly bring this it Declaratory within the ambit of the peti- Act as rights immediacy of choice before faced with tioner was judgments. fixed or affected the rendition might become v. American Liab. Ins. 844) cases cited therein. declaratory judgment. clearly support action for evidence question, This leaves for consideration summary judgment, raised motion jury resolution, genuine whether there are issues of fact applicable permit which under a determination law would Copeland’s insurer on liability Southeastern was do not think so. We had insurance solicitor who was an unlicensed Neal, Jr.,
T. E. a binder or other authority anyone to execute no Jesup Saturday, insurance contract. On accepted premium deposit for automo- James Accepting Copeland’s testimony as liability bile insurance. true, notwithstanding testimony contrary, Neal Neal’s *3 Copeland deposit told received the that he was covered when he day come the next and that he could one week insurance and furnish the information had to on the contract. The collision after shortly parted, occurred the two men and Neal signed went to the of collision scene where (cid:127) application. application This is addressed to Teachers Agency printed Georgia, Incorporated, Dublin, of of at the top statement, application of it is the “If payment and down re- through ceived individual, notified, application unless otherwise becomes a binder hours after of noon the date received.” application requests coverage from June to stamp and a date thereon indicates Teachers received application on or 22, June 21 1964. The on its submitting face shows the Agency, as Motors Insurance the trade name of Robinson. At the time Neal was working with Frank studying Robinson and in order to take qualify examination as an insurance salesman. op- Teachers erated as an broker, agent insurance and also as the for several companies. Acting insurance as agent basis of the facts in the application, shown Teachers issued a policy liability coverage Southeastern effective 22, 1964, year. for one of September canceled this as nonpayment premium. Even if upon by relied on Neal, Teachers behalf of Southeastern, bring are such statutory as Neal within the agent provisions definition of an under the 56-801b § Georgia Insurance as Code, wise, one who in directly or or indirectly, makes causes to be made a contract of insurance for or on account of an or insurer, who, repre- as a sentative receipts of an or insurer, money receives for trans- mission to an insurer for a contract of insurance, including a not automatically power would clothe him subagent, to issue a recognized valid oral as binder, provisions under the recognized and even if 66-2420 Neal were as a solicitor, § although unlicensed, (3) deprives 56-840b solic- § itor of any power to bind an insurer. Thus what Neal have told as to when his insurance took effect is not oper- ative as a fact appears unless it further that some basis exists to through conclude that Southeastern, Teachers, representations. ratified his In this State Farm relies respect, principle the established stated in that even “if the principal may shall exceed his not authority, ratify repudiate part; in in shall adopt either the whole or none,” insisting, Southeastern, through acting Teachers, issuing on rati- policy, fied all acts, including representations of Neal’s his coverage. effective date of evidence, It is clear from the how- ever, that on solely behalf of acted the basis of the application, making facts disclosed in the notwithstanding effective June the re- *4 quest effective on discloses nothing to inform if it ratified the acts of whoever solicited the
by issuing an insurance ratifying it would be respect undisclosed solicitor in to a already purport- binder edly in effect on applying
In only ratification is effective knowledge full of all material facts, principal, adopting and a purported obligated the acts of a agent, is not for the whole transaction purported agent where the acts of fully are not disclosed. proved fact of is “When subsequent adoption the act the principal, ratification previous there must be evidence of knowledge, principal, of all the material Hardeman & Hamilton v. facts.” Ford, (2). Morgan See, Ga. the same Ga. Paving Co., &c. App. Kephart Ga. Refining App. Gulf Felton, reversed. J., Bell, J., Hall, Eberhardt, C. P.
Deen, Quillian, Whitman, JJ., J., dissents. Pannell, Judge, Irrespective of dissenting. whether or not
Pannell, determining Civil Practice Act sufficiency of pleading a petition for declaratory judgment (American Southern Ins. Kirkland, 118
862)), dissent present I from the in the case the same reasons that dissented in the I case v. American Liab. Ins. Co., In that my case, dissent was based both the and the evidence. The completely evidence here fails to show that the petitioners entitled are to a judgment.