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Action for damages. Fulton Civil Court. Before Judge Camp. January 31, 1958.
FELTON, Chief Judge.
Mrs. Gladys F. Green Renas, as administratrix of the estate of Allen F. Green, sued Atlanta Realty Company, Inc. In substance the plaintiff alleged: that prior to the death of Allen F. Green and prior to December 3, 1953, in response to solicitation of the defendant, Mrs. Gladys F. Green Renas (then Mrs. Gladys Green), acting for and at the direction of her husband, Allen F. Green, did go to the office of defendant for the purpose of securing the full fire, casualty and physical damage insurance protection for said Allen F. Green; that said plaintiff carried with her to the office of the defendant a memorandum of all of the insurance policies of said Allen F. Green, including the names of the companies, policy numbers, type and amounts of insurance, and the expiration dates of the policies, and included in the aforesaid memorandum was a record of a policy affording physical damage insurance covering the 1953 Packard clipper four-door owned by Allen F. Green with the expiration date of December 3, 1953; that the plaintiff did at said time and place give the aforesaid information to an agent of the defendant, and the plaintiff did then and there offer, on behalf of Allen F. Green, to give renewals of all of the aforementioned policies at the expiration of each policy, if the defendant would write renewal policies, continuing the types and amount of insurance as existing, and the defendant accepted said offer and agreed to do so; that it was the custom of this defendant to assume the responsibility for keeping insurance in force for the people for whom they wrote insurance; that the aforesaid custom and practice was known to the companies for whom the defendant wrote insurance contracts and the practice was acquiesced in and approved by these companies or some of them; that the defendant at the aforesaid time and place through its agents did undertake and agree, in consideration of writing said insurance, to replace each of the aforementioned policies upon their expiration with like insurance coverage and to keep all policies current and in force, in accordance with its known custom; that the aforesaid policy of physical damage insurance was not replaced with like insurance or insurance of any kind by the defendant, nor did the defendant make any attempt to write such insurance; that the defendant did not notify Allen F. Green or the plaintiff that the physical damage policy had expired nor did the defendant at any time in any fashion inform said Allen F. Green or the plaintiff that the physical damage policy was not being issued or had not been issued as agreed to by the defendant as aforesaid; that said Allen F. Green was billed for insurance premiums in the amount of about $131; that the defendant replaced policies of public liability and fire insurance on furniture for Allen F. Green in accordance with its agreement. The plaintiff further alleged that on or about August 24, 1954, the Packard automobile was involved in a collision and was so badly damaged as to be a constructive total loss. The plaintiff prays for the damages caused by failure of the defendant to renew the physical damage policy on the Packard automobile.
The court sustained the general demurrer to the petition and dismissed the action and the plaintiff excepts.
The plaintiff in error contends that this case falls within the exceptions stated in Crogham v. New York Underwriters' Agency, 53 Ga. 109, Ramspeck v. Pattillo, 104 Ga. 772 (30 S. E. 962, 42 L.R.A. 197, 69 Am. St. R. 197) and other like cases because her petition shows that the defendant had the consent of its principal-insurers to act also as agent for insureds or prospective insureds. If this were true the defendant would be liable to the plaintiff for failure to procure a renewal of the policy on the automobile. Bell v. Fitz, 84 Ga. App. 220 (66 S. E. 2d 108). However, construing the petition most strongly against the plaintiff on general demurrer, she does not allege such consent. The plaintiff alleges that the custom and practice of the defendant in acting as agent for insureds and prospective insureds in renewing policies and in procuring policies was acquiesced in and approved by the companies the defendant represented or some of them. Properly construed, this allegation is that only "some" of the companies the defendant represented consented to the defendant's acting as a dual or common agent; therefore, there were some companies represented by the defendant which did not so consent. The plaintiff alleges that the defendant was to procure a "renewal" of the policy on the automobile. The only reasonable construction that can be placed upon this allegation on consideration of the general demurrer is that the existing policy on the automobile would be renewed with the same insurer. Consequently, consent of that particular principal-insurer must be shown to have existed before the defendant could act as agent of the plaintiff in procuring the renewal of the policy. No such specific consent is shown and it is not shown that that particular insurer was one of the companies which acquiesced in and consented to the custom and practice of the defendant's representation of insureds in the renewal or procurement of insurance coverage.
The plaintiff did not allege that the defendant did not represent, as agent, the company which had issued the existing policy on the automobile (in which case the defendant could have acted as the plaintiff's agent in the capacity of a broker in procuring that company's renewal of the existing policy) nor did the plaintiff allege that the defendant did represent that company as agent and that such company was one which had given its consent for the defendant to serve as a dual or common agent.
Since the only construction that can be placed on the petition is that the plaintiff knew the defendant was an insurance agent and not an insurance broker and it is not shown that the principal insurer with whom the renewal was to be effected consented to the dual or common agency, the petition does not state a cause of action.
The court did not err in sustaining the general demurrer to the petition and in dismissing the action.
Judgment affirmed. Quillian and Nichols, JJ., concur.
J. F. Kemp, J. D. Tindall, Jr., contra.
Nall, Sterne, Miller, Cadenhead & Dennis, Donald M. Fain, for plaintiff in error.
Saturday May 23 01:26 EDT

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