Southern Pine Superior Stud Corp. v. HerringSouthern Pine Superior Stud Corp. v. Herring
- Reporters:
- ,
- Before:
- Gillespie
Mr. and Mrs. Peter K. Herring sued Southern Pine Superior Stud Corporation (hereinafter Southern Pine) and Mid-South Corporation (hereinafter Mid-South) in the Circuit Court of Franklin County. Upon a jury verdict a judgment was entered in favor of plaintiffs in the sum of $2,100. Defendants appealed to this Court.
The declaration alleged that a truck leased by Mid-South to Southern Pine, which had been parked by defendants’ servant, rolled down a hill and struck and damaged plaintiffs’ automobile. Mrs. Herring was using the automobile on a visit to Meadville, Mississippi. Her husband was in military service stationed in Maryland. It was also alleged that an agent
The facts are stated in the light most favorable to plaintiffs in whose favor the jury returned its verdict.
The day following the accident Mrs. Herring called Southern Pine and told one of the officers that her automobile had been damaged by one of Southern Pine’s trucks. The truck was insured against public liability by Universal Underwriters whose claims were adjusted by H. B. Wellborn & Company, independent adjustors. Southern Pine had been instructed to contact Well-born regarding claims. When Mrs. Herring called the Southern Pine officer he told Mrs. Herring that he would have an insurance adjustor contact her. Mr. Patton, an adjustor employed by H. B. Wellborn & Company, then called Mrs. Herring. Within the next few days he had several personal conversations with Mrs. Herring and also talked to her several times by telephone. Mr. Patton told Mrs. Herring that his boss said “they” would pay the cost of repairing plaintiffs’ automobile, the expense of a rented automobile, the cost of taking the Herring automobile to Maryland after it was repaired and be responsible for all expenses incurred. This is Mrs. Herring’s version of the conversations, and the version the jury obviously believed. Mr. Patton’s version of the conversation was that his boss said to tell Mrs. Herring to go ahead and keep a record of whatever expenses Mrs. Herring and her husband had to incur for loss of use of the automobile, and when time came to settle the claim they would take it into consideration. Patton also testified that he told Mrs. Herring that “we” would be willing to pay the cost of repairing the Herring automobile.
The answer of defendants denied that Mr. Patton was the agent of defendants and denied that he made any contract with Mrs. Herring.
The main issue is whether the evidence justified a finding that Patton was the agent of defendants. Defendants were insured as to public liability by Universal Underwriters. H. B. Wellborn & Company, an independent adjusting firm, was the adjustor for Universal Underwriters. When Mrs. Herring reported the damage to her automobile caused by one of the defendant’s trucks, an officer of Southern Pine notified H. B. Wellborn & Company, who dispatched one of its adjustors to Meadville to adjust the claim. That -is the sole connection of Southern Pine with the matter as far as agency is concerned. Ap-pellees have not cited a case where an independent adjustor for an insurance company becomes the agent of the insured for the purpose of making contracts, and our investigation indicates there is no such au
It is true, as testified by an official of Southern Pine, that when Patton was investigating the claim of plaintiffs he was looking after the interests of Southern Pine. But there is no proof that he had any authority to enter into a contract on behalf of Southern Pine.
Another reason why the judgment must be reversed is that there was no contract on which an action could be based. The insurance company, represented by the adjustor, was negotiating the settlement of the Herrings’ tort claim against Southern Pine and Mid-South. An enforceable exec-utory accord may arise where a completed agreement is made to adjust a claim. But in order to be enforceable an executory contract to settle an unliquidated claim should be certain, full and complete in itself so as to preclude all future controversy. Habgood v. Van Dyke Taxi & Transfer,
The court has given careful consideration to the method of disposition of this case, whether to reverse the judgment and enter one here for appellants, or reverse and remand with leave of plaintiffs to amend the declaration so as to state a case in tort. We have decided that under the peculiar circumstances justice demands the latter.
Reversed, judgment vacated, and case remanded with leave to file amended declaration sounding in tort.