text:
    10008.
    SPEARS, administrator, v. FENDIG.-
    Decided June 12, 1919.
    By the petition in this case a temporary administrator sought to have the city court set up a trust in property alleged to have been conveyed to the defendant, and to set up title in the plaintiff’s intestate, and recover for a conversion of the trust fund arising from the defendant’s sale of the property. Hold, that the temporary administrator was without authority to' maintain the action, and the court was without jurisdiction to determine the cause; and it was not error to dismiss the case on demurrer.
    Action on contract; from city court of Brunswick—Judge Krauss. June 29, 1918.

      E. H. Williams, for plaintiff, cited:
    Civil Code (1910), § 3937; 84 Ga. 519; 108 Ga. 430; Id. 435.

      R. D. Header, Bennet, Twitty & Reese, for defendant, cited:
    39 Cye. 570; Civil Code (1910), § 6510; 112 Ga. 542; 10 Ga. App. 222; 129 Ga. 677; 137 Ga. 66 (6); 145 Ga. 867; 135 Ga. 515-16; 114 Ga. 673; 58 Ga. 288 (2).
   Luke, J.

Spears, as temporary administrator of Monroe Phillips, sued Fendig in the city court of Brunswick, alleging substantially that the defendant had damaged him in his capacity as temporary administrator, by reason of the following facts: From May 1 to September 10, 1910, the said Monroe Phillips, J. W. Hall, and. Fendig were jointly engaged' in securing, by means of options thereon ox direct purchase in some instances,'the control and the right to dispose of a large body of timber; the scheme being to dispose of the timber as a whole for a sum of money'they had paid or bargained to pay, the net profit to be equally divided between them; that the said timber was sold to Dodge Lumber Company on September 10, 1910; that the said scheme at its inception contemplated the taking of title to all of the said timber in the name of the defendant; that among the tracts of timber that the defendant and his associates desired to include in the said sale was one 214-acre tract of timber on which Monroe Phillips held an option, and which was conveyed by deed on June 24, 1910, by one Hendricks to the defendant, at the express direction of Monroe Phillips, the purpose of the said conveyance being solely to carry out the scheme of placing in the' defendant the • title to all tracts secured, in order that the whole body of timber when secured might be more expeditiously disposed of, tjiere being no other consideration accruing to Phillips, who held the option thereon and who, previously to the execution of the conveyance by Hendricks, paid to Hendricks out of his private funds the full amount of the purchase-price demanded by Hendricks; that no consideration was ever paid or given by the defendant to Hendricks or to Monroe Phillips, but the making and delivery of the said conveyance by Hendricks to the defendant was without payment of any consideration on the part of the defendant, it being understood and agreed between the defendant and Monroe Phillips that the said conveyance was made at the request of Phillips solely for the purpose of facilitating the carrying out of the deal; thatdhe defendant was to have no interest in the land thus conveyed other than to convey the timber interest therein, and afterwards the land subject to the timber sale was to be conveyed by the defendant to Monroe Phillips; that in order to carry out the said understanding and agreement the defendant executed an instrument in writing as follows, to wit: “Brunswick, Ga., June 24, 1910. Received from Monroe Phillips a land deed made direct to me from J. H. Hendricks to 214 acres of land near Glencoe, Ga., and recorded in Glynn county record book 3-B, page 653, and in whiph I have no interest whatsoever except to include the timber on said land in a timber deal in connection with J. H. Hall, and known as the Glencoe deal, after which I am to deed said land to Monroe Phillips, subject to our timber sale and pay the money for the timber over to Monroe Phillips. (Signed) Albert Fendig;” that the said Glencoe deal was finally and successfully carried through on the 10th day of September, 1910; that three years was a reasonable time to allow for the removing of the timber from the 214-acre tract, and that after the said timber had been removed the defendant, though repeatedly called upon by Monroe Phillips to carry out the-said agreement and convey to him the 214 acres, failed and refused to do so, but, on the contrary, conveyed the said land on May 3, 1912, to one J. S. Brailey; that the said conveyance was for a valuable consideration, which the defendant appropriated to his own use; that Monroe Phillips died on March 6, 1915; that the title to the said 214-acre tract having been disposed of to Brailey for a valuable consideration, and he having purchased said land without knowledge of or notice, actual or constructive, of the rights and equities of Monroe Phillips, legal, equitable, or both, Brailey had an indefeasible title to the said land; that having so conveyed the land the defendant can not be forced to perform specifically the contract to reconvey the same as agreed; that the value of the said tract of land when' conveyed by Hendricks was $935, and that its value when conveyed by the defendant to Brailey was, and it now is, $1,500 without the timber thereon; wherefore a judgment for $1,500 is prayed.

The defendant demurred, upon the grounds: that the petition set out no valid and legal cause of action as against him; that the cause of action was barred by the statute of limitations; and that a temporary administrator has no lawful authority to institute or maintain an action of this kind. The court sustained the demurrer and dismissed the suit, and the ■ plaintiff excepted.

By this petition the temporary administrator undertook, in the city court of Brunswick, to have the. court set up a trust, and, after setting up the trust, to recover for a conversion of the trust fund, and in addition thereto to set up title in his intestate to the property held in trust. We are of the opinion that the city court of Brunswick was without jurisdiction to determine the cause pleaded. If the defendant had not conveyed the land and still held the same, it cannot be said that in the city court of Brunswick the plaintiff could have the trust established and have the title decreed to be in him. It being necessary in this action that the plaintiff show title to have been in his intestate, the city court of Brunswick would not have jurisdiction. Moreover, we do not think a temporary administrator may maintain the action pleaded. Banks v. Walker, 112 Ga. 542 (37 S. E. 866); Jones v. Cliett, 114 Ga. 673 (40 S. E. 719). The court did not err in sustaining the demurrer, for the reason that the court was without jurisdiction to determine the cause, and the temporary administrator was without authority to maintain the action.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.


source: Caselaw Access Project

author: Ltjke, J.

license: Public Domain

text:
    10018.
    Smith v. Lawrence.
   Ltjke, J.

1. Where there is no claim of fraud, accident, or mistake, parol evidence is not admissable to^ vary the terms and conditions of a specific written agreement. The court did not err' in sustaining objections to the evidence offered by the plaintiff, as complained of in tlie bill of exceptions. Civil Code (1910), § 5752; Holt & Duggan Co. v. Clary, 146 Ga. 46 (90 S. E. 381).

Decided June 12, 1919.

Complaint; from Baldwin supérior court—Judge Park. July-10, 1918.

Joel A. Smith sued J. E. Lawrence for $500, alleging that on May 30, 1917, the defendant borrowed of. him $200 in cash an.d the plaintiff’s negotiable promissory note for $300, and agreed to repay both sums by November 1, 1917, and failed to repay them or any part of them, apd. that the note was negotiated to an innocent purchaser before maturity. The defendant in his .answer denied that he borrowed the money or the note, and denied that he owed anything to the plaintiff. From the plaintiff’s testimony at the trial it appeared that he and the defendant entered into a written contract, dated “5/30, 1917,” which, after reciting the payment of $200 by him to the defendant, and the giving of his promissory note for $300 to the defendant, due November 1, 1917, proceeded as follows: “for which the said J. E. Lawrence has this , day delivered to the said Joel A. Smith fifteen shares of the capital stock of the Satilla Pecan Orchard & Stock Company, of Waycross, Ga., par value $100 per share, and the said J. E. Lawrence agrees to sell the said 15 shares of stock at any time before November 1, 1917, and pay off the above-mentioned note . . and also pay the said Smith the $200.00 paid -by him in cash to said Lawrence, and also pay off” a certain fi.fa., “from proceeds of said sale of stock; and in the event that I, J. E. Lawrence, should fail to sell said stock and pay off said note and cash and fi.fa., I hereby authorize the said Joel A. Smith to sell the said 15 shares of stock at public or private sale and apply the proceeds of said sale first to the payment of above-mentioned note and cash, and second to the payment of the above-mentioned fi.fa., and the remainder, if any, then to be turned over to said Lawrence.” The plaintiff testified that he let the defendant have' the money and the note as a loan, and took the 15 shares of stock as collateral, and the defendant was to pay him ,on the first of November, 1917, and redeem the stock; that he did not give the- $200 and the note in the purchase of stock. In regard to the written contract he testified: “I think I kind of sketched it out; I don’t know whether I wrote it all, hut the principal part of it. This is the contract between me and Mr. -Lawrence that I am suing on.” At the conclusion of the plaintiff’s testimony the court, on motion of the defendant, ruléd out the plaintiff’s testimony as to the terms of the contract, on the ground that the contract was in writing. The defendant 'then moved that a nonsuit be granted, and the motion was sustained.

2. The evidence of the plaintiff did not prove his ease' as laid, and the court committed no error in awarding a nonsuit.

Judgment affirmed.

Wade, C. J., and Jenkins, J.., concur.

R. S. Wimberly, for plaintiff.

Sibley & Sibley, Allen & Pottle, for defendant.


author: Luke, J.

text:
    10034.
    Almond v. Coalson et al.

    Decided June 12, 1919.
    Complaint; from city court of Carrollton—Judge Beall. June 12, 1918.

      Boykin & Boykin, for plaintiff. J. L. Vaughan, S. Eolderness, C. E. Roop, for defendants.
   Luke, J.

This was an action on a promissary note, to which the defendant Coalson pleaded discharge in bankruptcy. The evidence shows . ‘ that within the time permitted by the bankruptcy act the plaintiff in this case, who had been inadvertently omitted from the schedule of creditors in the bankruptcy proceeding, was, by duly allowed amendment, added, and was served with proper notice as a creditor; and it further-' appearing that the bankrupt was allowed his discharge in bankruptcy from the debt sued upon, it was not error for the court to direct a verdict in favor of the defendant Coalson.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.


author: Wade, C. J.

text:
    10038.
    Woodard v. Smith-Kassell Company.
   Wade, C. J.

In this ease there was an attempt to sue in a magistrate’s court on an open account, but the original summons was never signed by the magistrate, though the copy served upon the defendant appeared to be regular. The .defendant interposed a demurrer, on the ground that there had been no legal service, but he withdrew the demurrer, and thereupon filed a proper traverse to the return of the officer, complaining that there had been no legal service. Regardless of whether, under the requirement of section 4715 of the Civil Code that all suits before justices of the peace and notaries public who are ex-officio justices of the peace “shall be issued and signed by the justice of the peace or notary public of the district in which the suit is brought,” the failure of the magistrate to sign the original summons could be loaived by the defendant (as to which see Gunnells v. Deavours, 54 Ga. 496; Jeffers v. Ware, 72 Ga. 135; Parkas v. Stewart, 73 Ga. 90; Peeples v. Strickland, 101 Ga. 831, 29 S. E. 22), it does not appear in this case that there was anything to constitute such a waiver on the part of the defendant in the justice’s.court; and, there being no legal service, the judge of the superior court erred in sustaining the-certiorari.

Decided June 12, 1919.

Certiorari; from Laurens superior court—Judge Kent. June 22, 1918.

From the petition for certiorari and the answer it appears that when the case was sounded at the appearance term of the justice’s court the defendant demurred .in writing on the ground that there had been no legal service. The plaintiff moved to enter up judgment in its favor, contending that proper service appeared from the officer’s return, which was not traversed, and that the defendant, by appearance and pleading “in the form of his demurrer,” had waived all irregularities in process, absence of process, and service. The court, over objection of the plaintiff, allowed the defendant to withdraw the demurrer and file a traverse to the return of service. The court sustained the traverse and dismissed the ease; and in the petition for certiorari the rulings stated were complained of. The judge of the superior court sustained the certiorari, and the defendant excepted.

Fred Kea, for plaintiff in error.

Judgment reversed.

Jenkins and Luke, JJ., concur.


text:
    10207.
    MAY v. GLOBE AND RUTGERS FIRE INSURANCE COMPANY.
    Decided June 12, 1919.
    Where a policy of fire-insurance on a building provided that “this entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void . . if a building herein described, whether intended for occupancy by owner or tenant, be 'or become vacant or unoccupied and so remain for ten days,” and it was not otherwise provided by indorsement or addition to the policy as stipulated therein, and the building was vacant for several months after the issuance of the policy and until the building was destroyed by fire, the policyholder was not entitled to recover for the loss. It made no difference that the vacancy existed at the time of the issuance of the policy and was then known to the insurer.

      Action on insurance policy; from Fulton superior court—Judge Pendleton. September 19, 1918.

      Colquitt & Conyers, Albert P. Mayer, for plaintiff, cited:
    134 Ga. 501; 133 Ga. 793; 132 Ga. 687; 97 Ga. 44; 3 Kan. 225 (44 Pac. 35); 157 N. W. 955 (Iowa); 44 Neb. 537 (62 N. W. 877); 176 Pa. 638; Civil Code (1910), § 2475; 3 Ga. App. 807; Id. 685; 104 Ga. 277.

      Moore & Pomeroy, for defendant, cited:
    18 Ga. App. 192; 16 Ga. App. 61; 17 Ga. App. 46-7; 106 Ga. 472; 108 Ga. 392; 132 Ga. 704; 4 L.R.A. 1137(3), s.c. 77 N.E. 493; 56 S.W. 264; 35 S.W. 26.
   Luke, J.

This was an action on a policy of fire-insurance on a building. The policy provides, among other things, that “this entire policy, unless otherwise provided by agreement indorsed herein or. added hereto, shall be void . . if a building hereiü, described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.” The policy contained also a' provision to the effect that no agent or officer of the insurance' company should have power to waive any provision or condition of the policy unless the waiver should be written upon or attached to. it. Liability was denied by the insurance company on the ground, among others, that the building was vacant and unoccupied,'Without its consent or knowledge, for more than ten days after the issuance of the policy, and so remained until the destruction of the building by fire. The plaintiff testified, as to the occupancy of the building: “There was a party in there; they moved in, but they never occupied it, and about the time the war broke out they couldn’t go on, for the want of material at the time, and there was no chance for them to make good, and they didn’t occupy it. They never moved in, but they had some .fixtures in there, and they never moved them out; they never occupied it and they left it.” It is conceded that at the time of issuance of the policy of insurance the building was vacant, and that it remained so until the fire, and the vacancy existed practically for six months from the date of the policy. The plaintiff contends that inasmuch as the property was vacant at the time of the issuance of the .policy, the insurance company should be held to have waived the provision as to ten-days vacancy of the building. It is true that where facts which, under the terms of the policy, would invalidate it are made known to the company at or prior to the issuance of the policy, they do not render it void. The policy in this case at the date of its issuance was not void because of the vacancy of the building, but when the building remained vacant and Tinoccupied for more than ten days before the fire (in this case nearly six months) the policy did become void; and the fact of vacancy of the building at the time of the issuance of the policy will not be held to be a waiver of the express terms of the contract of' the insured and the insurer. The precise question raised in this ease has never been passed upon by the Supreme Court or the Court of Appeals of this State, and in other jurisdictions the appellate courts differ on it, some holding with the contention of the plaintiff here, and some with the defendant. It seems to us that the best and • safest rule is to hold that the express terms of the contract on the part oE the insured should be complied with before liability should be adjudged under the insurer’s promise of indemnity. If the plaintiff desired a modification of the policy, or a vacancy permit, it was within his power to seek it.

Upon the evidence submitted the court did not err in granting a nonsuit.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.


author: Luke, J. 1.

text:
    10336.
    Brooks et al. v. Goodin.
    Decided June 12, 1919.
    Processioning; from Jefferson «superior court—Judge Hardeman. October, 14, 1918.
    Goodin owned a tract of land adjoining land of Brooks and Anderson. There was dispute between Goodin and these adjoining’ landowners as to- the line between his and their land, and' he applied to the proeessioners of the district to mark the line anew. A line was marked by the proeessioners, and a protest to their return was filed by Brooks and Anderson. A trial by a jury in the superior court resulted in a verdict in favor of the return; the protestants made a motion for a new trial, which was refused, and they excepted.
   Luke, J. 1.

An unascertained or disputed boundary lino between adjoining .landowners may be established by oral agreement; and such an agreement is executed so as .to be binding ’when such owners procure a surveyor to survey and definitely mark out the line agreed upon, or themselves do so. See Osteen v. Wynn, 131 Ga. 209 (62 S. E. 37, 127 Am. St. R. 212).

2. The charge of the court, when read as a whole, is not subject to the criticism urged against it; and for no reason assigned did the eoui’t err in overruling the motion for a new trial.

Judgment affirmed.

Wade, O. J., and Jenlcms, J., concur.

At the trial there was testimony to the effect that in order to settle' a dispute as to the line, Goodin proposed that 86 acres should be cut off to Brooks by a straight line which should run from a given point, and this was agreed to, and it was agreed by the parties that a certain surveyor should be employed, at the expense of Goodin, to run and mark the line in accordance with this agreement; and the surveyor, with the- assistance of Goodin and Brooks, did this and was paid by Goodin for his services. There was testimony on the part of the protestants that they did not agree to the line as then run by the surveyor. In the motion for a new trial it was alleged that the court erred in charging as follows: “Coterminous landowners differing among themselves about the true line may enter into a parol agreement about what the true line is, and when they do agree about it and the line is run in accordance with the agreement, it is binding, and the party would not thereafter be heard to say that some other is the true and correct.line.” Also: “So in this ease, after the differences arose beiween the parties, if Mr. Goodin and Mr. Anderson and Mr. Brooks, the parties who had the differences about the land lines, if they agreed that a line should be run, and that to be a straight line, cutting off to Mr. Brooks 86 acres of land, and they entered into that agreement, and thereafter these proeessioners [?], with the surveyor, ran the line in accordance with that agreement, then I charge you, if you should find that to be the truth of the case, it would not be necessary for you to pursue your investigations further. If the agreement was entered into, a definite, distinct agreement between the parties, and they understood it, and the line was run In accordance with that agreement,- then it would make no difference though one of the parties may have thereafter become dissatisfied with that survey, if the survey was made and the line was run in accordance with the definite, distinct agreement between the parties. If they agreed upon'a line and run the line in accordance with the agreement, and you should so find, • then write your verdict in this case for the applicant.” This is alleged to be error “because of an incorrect statement of the law, and because, with this charge delivered to the jury, they had a right to uphold the finding of the processioners in the event they should have concluded from the evidence that there was a verbal agreement to run a line, without said agreement having been executed or in anywise thereafter concurred in.”

B. T. Rawlings, for plaintiffs in error, cited:

Osleen v. Wynn, 131 Ga. 209(3), 215; Barr v. Woolfolk, 118 Ga. 277(2); Gornto v. Wilson, 141 Ga. 597(2); Bunger v. Grimm, 142 Ga. 454(7).

M. C. Barwich, contra, cited:

Civil Code (1910), § 5019; 5 Cyc. 945; Osleen v. Wynn, supra.


text:
    10241.
    Lime Cola Bottling Co. v. Harris Tire Co.
    Decided June 12, 1919.
    Complaint; from city court of Savannah—Judge , Freeman. October 28, 1918.
    The action was on an open account consisting of numerous dated items, including such items as: “Pulling car out of mud-hole,” “Going out and starting motor,” “2 hours mechanic’s time going out and starting car,” “Trip to East Savannah to pull car out of sand,” “1 hour mechanic’s time repairing magneto,” etc., each followed by an amount in money; to which the defendant demurred on the ground that the items were too vague, indefinite, and uncertain. Error was assigned on the overruling of the demurrer.

      Robert L. Golding, for plaintiff in error.

      Edwards & Lesler, contra.
   Luke, J.

There was no error in overruling the demurrer, or in the admission of testimony. The evidence in this ease, which was tried according to law, supported, if it did not demand, the verdict returned for the plaintiff. For no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.


text:
    10359.
    Compton v. Woodruff Machinery Manufacturing Company.
    Decided June 12, 1919.
    Complaint; from Madison superior court—Judge W. L. Hodges. November 3, 1918.
    Woodruff Machinery Manufacturing Company sued Compton on an open account for $175, alleged to be difference due in swapping engines between plaintiff and defendant.” The defendant pleaded, and on the trial testified, that in the transaction in which the plaintiff’s engine was traded to him, the plaintiff guaranteed its engine to be a twelve horse-power engine and in good condition, and guaranteed that it would do a third more work than the engine which the plaintiff was getting from him; that after he received the plaintiff’s engine he gave it a thorough test, and it failed to do the work it was guaranteed to do, and after he had notified the plaintiff of this fact the plaintiff failed to make the engine do the work it was guaranteed to do, and refused to exchange back. The agreement was not in writing. The plaintiff contended that no such warranty was made. The trial judge charged the jury on the law- applicable to an express warranty, and then charged as to implied warranty, in the terms of the Civil Code (1910), § 4135.' The verdict was against the defendant, and, his motion for a new trial being overruled, he excepted. In the motion the charge as to implied warranty is complained of, on the ground that, the defense being express warranty, the court should not have given in charge the law of implied warranty.

      Gordon & Gordon, Thomas J. Shackleford, for plaintiff in error, cited:
    Civil Code (1910), § 4135; 7 Ga. App. 399; 1 Ga. App. 379; 136 Ga. 754; 133 Ga. 807(1); 130 Ga. 730; 104 Ga. 313; 71 Ga. 470; 143 Ga. 464.

      Berry T. Moseley, contra, cited:
    4 Ga. App. 716(1), and cit.; 13 Ga. App. 173, and cit.; 14 Ga. App. 334(6); 143 Ga. 464(1); 108 Ga. 817(1); 144 Ga. 88; 36 Ga. 649(3).
   Luke, J.

Where there was a sale of personal property under an express warranty as to quality, and in defense to a suit for money alleged to be due for the property an express warranty was pleaded, it was error for the court to charge on the subject of implied warranty. On account of this error the judgment overruling the motion for a new tria! is

Reversed.'

Wade, C. J., and Jenkins, J., concur.


text:
    10270.
    Atlantic Coast Line Railroad Company v. Guinnip.
    Decided June 12, 1919.
    Petition for certiorari; from Liberty superior court—Judge Sheppard. November 9, 1918.
    From the petition for certiorari it-appeared that the railroad company was sued by Guinnip in a justice’s court of Liberty county for $50, on account of the killing of a horse alleged to have been killed at Allenhurst in that county on April 18, 1918; that at the appearance term the defendant filed a general denial of the plaintiff’s allegations; and that the testimony at the trial on appeal in the justice’s court was as follows: The plaintiff testified: “The horse which they removed from the pilot of the defendant’s train at Allenhurst in said county on April 18, 1918, was my property. His value was $50, which the defendant has not paid me and is now due me. I did not see the train strike the horse.” Another witness testified: “I was at the depot of the defendant at Allenhurst in Liberty county, Ga.> on April 18, 1918, when the defendant’s train No. 21 arrived about 3:40 p. m. When the engine rolled up to the station at Allenhurst- the plaintiff’s horse was on the pilot, dead. I helped to remove the carcass from the track. I. did hot see the train kill the horse. The value of the horse was $50.” The jury rendered a verdict in favor of the plaintiff for $50, for which judgment was rendered. The petition for certiorari alleged that the verdict was contrary to law and evidence and without evidence to support it. In the brief uf counsel for the railroad company it is contended: (1) At the time of the alleged killing the United States government was operating the railroad (a fact as to which judicial cognizance must be taken: 16 Cyc. 904; 38 Fed. 415, 419; General Order of Director General, No. 27, Koberts’ Federal Liability of Carriers, p. 1712), and the government alone is liable, if there be any liability: Central Law Journal, Feb. 7, 1919, p. 100. (2) There was no evidence, either direct or circumstantial, that the horse was killed by the train. (3) If the suit could be construed as being against the Director General, there was no presumption against him (98 Ga. 306). (4) There was no evidence that the horse was struck by the train in Liberty county, and the jurisdictional allegation of the plaintiff’s pleading was not sustained: Park’s Code, § 2798; 53 Ga. 500, 501(1); 6 Ga. App. 858(1); 1-11 Ga. 855, 856.
   Luke, J.

The court erred in refusing to sanction the certiorari.

Judgment reversed.

Wade, C. J., and Jenkins, J., concur.

Osborne, Lawrence S Abrahams, Melville Price, for plaintiff in error.


text:
    10350.
    Hunt v. Canton Fertilizer Company.
    Decided June 12, 1919.
    Motion to set aside judgment; from Cherokee superior court— William Butt, judge pro hac vice. January 1, 1919.

      W. D. Mills, W. W. Stark, for plaintiff in error.

      Howell Brooke, George D. Anderson, contra.
   Wade, C. J.

In this case it was sought to set aside a judgment rendered in the absence of the movant and one of her attorneys, and to reinstate the case. The evidence was amply sufficient to support a finding that the movant was lacking in diligence; and the^e was no abuse of discretion in refusing to vacate the judgment and reinstate the case.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    10360.
    LIVELY et al.v. WARD & McCULLOUGH.
    Decided June 12, 1919.
    1. The legal representative of a deceased partner may be sued in the same action with the survivor,- on a contract of the firm; and, this being such a suit and the legal representative being a resident of Fulton county, the municipal court of Atlanta had jurisdiction to try .the case, although the surviving partner was a resident of Gwinnett county.
    2. The judge of the superior court did not err in sustaining the certiorari..
    Certiorari; from Fulton superior court—Judge Ellis. January 21, 1919

      D. K. Johnston, I. L. Oakes, for plaintiffs in’ error.

      Lovic G. Fortson, contra.
   Wade, C. J.

Ward & McCullough brought suit in the municipal court of Atlanta against M. L. Lively, as administrator of the estate of H. M. Lively, and also against C. P. Lively, for the breach of a written contract for the sale of' 50 tons of cottonseed. It appears from the allegations of the petition that the contract was made by H. M. Lively, deceased, for the firm of C. P. Lively & Son; that at the time the action was brought the partnership. had been terminated by the death of LL M. Lively, and that there had been a year’s administration upon his estate; that M. L. Lively, the administrator of LI. M. Lively, is a resident of the city ¡of Atlanta, Fulton county, Georgia/ and that C. P. Lively, the surviving partner, is a resident of Gwinnett county. Defendants made a motion to dismiss the suit, for want of jurisdiction, which was sustained, and the plaintiffs carried the case to the superior court by certiorari; the certiorari was sustained, and the defendants excepted.

Did the municipal court of Atlanta have jurisdiction to entertain and try this case ? That is the question presented for adjudication, and in order tp answer it we must first, decide whether an administrator can be joined with a surviving partner in an action for the breach of a written contract. In other words, in joining the administrator of the deceased partner with the surviving partner, as was done in this case, was there a misjoinder of parties? Section 5586 of the Civil Code (1910) provides: “Where any person shall be in possession (in his own right, or in any other capacity) of any note, bill, bond, or other obligation in writing, signed by two or more persons, and one or more of the persons whose names are so signed as aforesaid shall die before the payment of the money, or the compliance with the conditions of said bond or obligation in writing, the person holding such bill, bond, note, or other obligation in writing shall not be compelled to sue the survivors alone, but may at his discretion sue the survivor or survivors, or the representatives of such deceased person .or persons, or survivor or survivors, in the same action with the representative or representatives of such deceased person or persons.” The next section of the code (§ 5597) declares: “The preceding section shall be so construed as to embrace debts against copartners, as well as against joint or joint and several • contractors.” These sections (5596, 5597) are the same as sections 3373 and 3373 of the Code of 1868, which were construed by the Supreme Court in the case of Garrard v. Dawson, 49 Ga. 435, where it was held: “The legal representative of a deceased partner may be sued in the same action with the survivor, on a firm contract.” It is true that section 3176 of the Civil Code (1910). declares that “the surviving partner, in case of death, has the right to control the assets of the firm to the exclusion of the legal representative of a deceased partner, and he is primarily liable to the creditors of the firm for their debts.” However, as was said in the Garrard case, supra (after referring to the provisions of that section), sections 5596 and 5597 give “the right to sue the representative of the deceased partner in the same action with the survivor, without qualification or restriction.” The cases of Roosvelt v. McDowell, 1 Ga. 489, Ross v. Everett, 12 Ga. 30, and Bennett v. Woolfolk, 15 Ga. 213, in which it is held that the surviving partner or partners must be sued alone on partnership contracts, were decided prior to the act of 1858, from which was taken section 5597, supra, which made the provisions of section 5596 applicable to copartners.

The Garrard case being authority for.the proposition that the legal representative'of a deceased partner may be sued in the same action with the survivor, on a firm contract, we come now to the question of whether this suit should have been brought in Gwinnett county, that county being the residence of the surviving partner, or whether it could have been brought either in Gwinnett county or in Fulton county, the last being the legal domicile' of the administrator of the deceased partner. We are of the opinion that the suit could have been brought in either Gwinnett or Fulton county. “A partnership may be sued in any county in which one of the partners has such a residence as will confer upon the courts of that county jurisdiction over his person, regardless of the place of his citizenship.” Pyron v. Ruohs, 120 Ga. 1060 (2). The fact that the administrator in the present suit, a resident of Fulton county, was appointed by the courts of Gwinnett county does not in any way militate against the proposition that he may be sued as administrator in Fulton county. “The venue of a suit by a creditor of an intestate person against the administrator is the county of the defendant’s residence, and not the ■ county of the administrator’s appointment, where the administrator resides in a different county.” Long v. Stanford, 135 Ga. 832 (70 S. E. 645).

The municipal court had jurisdiction to try this case, and the judge of the superior court did not err in sustaining the certiorari.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    10363.
    WATSON v. LITHONIA BANKING COMPANY.
    Decided June 12, 1919.
    Although the presumption is that the magistrate’s answer to the certiorari was true, the evidence introduced on the issue made by the traverse to the answer was in conflict and did not demand a finding against the traverse; and the judge of the superior court therefore erred in directing a verdict against the traverse.
    Certiorari; from Gwinnett superior court—Judge Cobb. January SO, 1919.

      O. A. Nix, for plaintiff in error..

      L. B. Norton, I. L. Oakes, contra.
   Wade, C. J.

' This was a suit in a justice’s court upon a promissory note. The defendant filed a plea of non est factum. The trial of the case in the justice’s court having resulted in a verdict for the plaintiff, certiorari was sued out. One of the grounds of the petition for certiorari was that the note sued upon was not introduced in evidence. The magistrate’s answer states that the note was introduced in evidence. The defendant thereupon traversed the magistrate’s answer as to this statement. At the conclusion of the evidence upon the issue thus raised, the judge of the superior court directed the jury to return a verdict against the traverse, and also 'overruled the certiorari. A motion for a new trial, based on the ground that the judge of the superior court erred in directing the verdict, was overruled, and exception is taken to this judgment, as well as to the order overruling the certiorari.

Although the presumption is that the statement made in the magistrate’s answer was true, the traverse to the answer raised an issue of fact, and since the evidence introduced upon this issue was in sharp conflict, this court cannot say, as a matter of law, that the evidence demanded a finding in accordance with that presumption, and therefore the’action of the judge of the superior court in directing a verdict against the traverse and in overruling the certiorari is

Reversed.

Jenkins and Luke, JJ., concur.


text:
    10368.
    Hemphill v. Cohutta Banking Company.
    Decided June 12, 1919.
    Complaint; from Murray superior court—Judge Wright presiding. January 6, 1919.

      Maddox, McCamy & Shumate, for plaintiff in error.

      Little, Powell, Smith & Goldstein, H. H. Anderson, R. N. Steed, W. E. Mann, W. C. Martin, contra.
   Wade, C. J.

The pleadings and the rulings of the lower court thereon ■ in this case being substantially the same as those in Leonard v. Cohutta Banking Co., 21 Ga. App. 777 (95 S. E. 113), the decision there made, that “the court did not err in its rulings on the' pleadings, nor in directing a verdict for the plaintiff,” is controlling, and the judgment of the trial judge is

Affirmed.

Jenkins and Luke, JJ., concur.


text:
    10372.
    Denton v. Wimberly.
    Decided June 12, 1919.
    Certiorari; from Bibb superior court—Judge Mathews. January 22, 1919.

      John R. L. Smith, Grady C. Harris, for plaintiff in error.

      Sam B. Hunter, J. T. Hill, contra.
   Wade, C. J.

The only assignment of error in the petition for certiorari which is insisted upon here being that the verdict is contrary to law and to the evidence, and there being evidence to support the verdict, the judgment overruling the certiorari is

Affirmed.

Jenkins and Luke, JJ., concur.


author: Bloodwortii, J.

text:
    10191.
    Burgan et al. v. The State.
   Bloodwortii, J.

A petition headed “State of Georgia, Whitfield County,” directed “To the Superior Court of said county,” and regularly filed in the office of the clerk of that court, which containeTd the following paragraph: “The above-described car is the property of Tom Burgan, of Catoosa county, Georgia, and was being used by him, and by others with his knowledge and consent, ~jn the transporting of intoxicating liquors over and through the public highways of said county, in violation of law,” was properly amended by inserting after the word “county,” in the latter part of the paragraph, the words “of Whitfield.” Perry v. Mulligan, 58 Ga. 479 (3); Hall v. Mobley, 13 Ga. 318; Cowart v. Young, 74 Ga. 694 (3) ; Murphy v. Peabody, 63 Ga. 522. In the last named case Judge Bleckley said in the opinion (p. 524), “The rule of amendment is as hroad as the doctrine of universal salvation.”

Decided June 13, 1919.

Condemnation of vehicle conveying liquor; from Whitfield superior court—Judge Tarver. October 8, 1918.

M. L. Harris, W. E. Mann, W. Gordon Mann, for plaintiffs in error.

J. M. Lang, solicitor-general, contra.

2. The constitutional question sought to be made by the demurrer of Tom Burgan, not having been argued in the brief of counsel for the plaintiffs in error, will be treated as abandoned.

3. After the petition was amended as shown above, it was proper for the court to strike a demurrer previously filed by Tom Burgan, alleging that the jurisdiction of the case “is in the superior court of Catoosa county, Georgia, the allegation of the petition being that said car was seized while being used in transporting intoxicating liquors over the highways of Catoosa county.”

(a) The special plea to the jurisdiction was also property stricken, after the petition was so amended.

4. The court did not err in striking the intervention of D. IT. Burgan.

5. The statement -in the brief of counsel for the plaintiffs in error, “We think this court will agree with u's that the evidence fails to make out a case, and that the judge should not have directed a verdict in favor of the State,” affords no assistance to the court in considering the ruling complained of, and does not amount to an argument, and' the failure to say anything further in regard to the alleged error amounts to an abandonment of this point. Rounsaville v. Camp, 19 Ga. App. 336 (4) (91 S. E. 446); Muse v. Ball, 18 Ga. App. 651 (3) (90 S. E. 222) ; Moss v. Bohanon, 111 Ga. 871 (36 S. B. 954).

6. The court did not err in directing a verdict for the plaintiff.

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.


author: Broyles, P. J.

text:
    10312.
    Southern Railway Company v. Smallwood.
   Broyles, P. J.

1. This court can not pass upon the question as to whether the trial court erred in disallowing the proffered amendment to the defendant’s answer, it appearing that upon a former trial of'the case, at a preceding term of the court, the identical amendment was disallowed by the court, and that no exception to that judgment was taken.

2. The original answer of the defendant containing no plea of res adjudicata, and the amendment setting up such a defense having been disallowed, the court did not err in repelling the documentary evidence offered to show that in a former suit between the plaintiff’s wife and the defendant there was an adjudication as to the injuries and the pain and suffering sued for. Furthermore, upon the trial the court distinctly instructed the jury that the plaintiff could not recover for any pain and suffering sustained by his wife.

Decided June 13, 1919.

Action for damages; from city court of Hall county—Judge Wheeler. December 23, 1918.

J. O. Adams, Ed. Quillian, C. L. Faulhner, E. A. Neely, for plaintiff in error.

C. N. Davie, E. D. Kenyon, contra.

3. The court erred in charging the jury: “If you believe, under the law, or under the rules of law rather, and the evidence in this case, that the plaintiff’s wife was a passenger on one of the trains of the defendant, . as he alleges she was, and that she received an injury, then the law would raise a presumption that the defendant was negligent in each manner complained of in the petition, 'and this presumption would be sufficient upon which to base a recovery, unless the defendant rebutted this presumption by evidence sufficient to satisfy your minds that at the particular time in question it was exercising the _ degree of care required of it by law and discharged its duty in this particular.” This charge was erroneous in that it virtually instructed the jury that the presumption of negligence against the defendant would arise if the plaintiff’s wife was injured in any manner, whether by the running of the defendant’s trains or from some other cause, while a passenger upon one of its trains. This presumption arises only where the injury is caused by the running of the defendant’s trains. The error was not cured in any other part of the charge, and as this case is a very close one, under the evidence, as to whether the plaintiff was entitled to recover, the error requires a new trial of the case.

4. In the light of the facts of the case and of the entire charge of the court, the other exceptions to the charge are without substantial merit.

Judgment reversed. Bloodworth and Stephens, JJ., concur.


text:
    10319.
    Byrd v. Planters Warehouse Company.
   Broyles, P. J.

This was a suit against a married woman on a promissory note executed solely by her. She admitted the execution of the note, but pleaded that its sole consideration was indebtedness of her husband. The verdict was against her, and she excepts to the overruling of her motion for a new trial, based on the usual general grounds. Eeld-. While thg evidence was in sharp conflict, this court can not say that the jury were not authorized to And therefrom that the defendant’s husband acted as her agent (although this agency was denied by the defendant upon the trial) in the purchase of the goods for which the note sued on was given, or to find that she subsequently ratified these acts of her agent by voluntarily signing the note sued on, or that the plaintiff, at the time the debt was created, really intended in good faith to extend the credit to her and not to the husband, and that the consideration of the debt passed legally and morally to her. See, in this connection, Schofield v. Jones, 85 Ga. 810 (11 S. E. 1032). The ease of Hill v. Bazemore, 17 Ga. App. 107 (SO S. E. 397), cited by counsel for the plaintiff in error, is easily distinguishable by its particular facts from this case.

Decided June 13, 1919.

Complaint; from Taylor superior court—Judge Howard. November 16, 1918.

C. W. Foy, for plaintiff in error.

Judgment affirmed.

Bloodioorth and Stephens, JJ., concur.


text:
    10495.
    Huckary v. The State.
    Decided June 13, 1919.
    Rehearins Denied June 19, 1919.
    Indictment for adultery and fornication; from Cobb superior court—Judge Morris. 'April 5, 1919.'

      Herbert Clay, for plaintiff in error.

      John T. Dorsey, solicitor-general, William Butt, contra.
   Broyles, P. J.

1. Under repeated.rulings of the Supreme Court and of this court, where a portion of an excerpt from the charge of the court, complained of, is not erroneous, and the exception is to the entire excerpt (the erroneous portion not being pointed out), the exception is too broad and will not be considered by the reviewing court. In this case the excerpt complained of dealt with the subjects of admissions and confessions, and exception was taken to the entire excerpt. The. portion of the charge on admissions was authorized by the facts of the ease and was not error for any reason assigned. Under the foregoing ruling the exception to the entire excerpt' was too broad and. will not be considered.

2. The other special grounds of the motion for a new trial are without merit:

3. The evidence as to the venue of the crime, while circumstantial and not altogether satisfactory, authorized a finding in favor' of the State upon this issue.

4. The verdict was authorized by the evidence, and, having been approved by the trial judge, this court is without authority to interfere.

' Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


author: Judge Harold R. Banke. Smith, Judge,

text:
    A97A1367.
    INDUSTRIAL MECHANICAL, INC. v. SIEMENS ENERGY & AUTOMATION, INC.
    (495 SE2d 103)
   Judge Harold R. Banke.

Industrial Mechanical, Inc. (“Industrial”) sued Siemens Energy & Automation, Inc. (“Siemens”) to recover for a debt allegedly owed by Free Flow Cooling, Ltd. (“Free Flow”), a British company. It is undisputed that the trial court lacked jurisdiction over Free Flow. Industrial appeals the trial court’s dismissal of its action against Siemens based on the court’s determination that Free Flow was an indispensable party.

Industrial alleged in its complaint that it subcontracted with Free Flow for a portion of a construction project in Texas and that Free Flow breached that subcontract by failing to pay $171,974.44, plus interest, to Industrial. Yet, Industrial did not sue the real property owner, or Free Flow, the party allegedly in breach. Industrial made no claim of any contractual relationship between itself and Siemens or any alleged breach of any contract other than a purported guaranty. Held:

To determine whether Free Flow was an indispensable party, we need look no further than Industrial’s complaint and the document which Industrial claimed it attached to its complaint. In so doing, we do not consider the viability of Industrial’s underlying claim that Free Flow breached its agreement with Industrial but only address whether Free Flow was an indispensable party to Industrial’s claims against Siemens. Floyd Davis Sales v. Central Mtg. Corp. &c., 197 Ga. App. 532, 533 (398 SE2d 820) (1990) (this Court considered the record evidence to ascertain party’s indispensability).

This purported guaranty is a single page of correspondence dated January 27, 1994, which is included in the appellate record and which Industrial referenced as “Exhibit A” to its complaint. Industrial claimed that this document constituted an enforceable surety agreement between itself and Siemens. It is undisputed that Industrial’s claim for indemnification is based solely on this document. This purported guaranty is a handwritten telefax from Siemens addressed to Industrial Free Flow (a different entity who is not a party here) which states in pertinent part, “We have received preliminary notices and we like [sic] to point out that the contract we have signed does not allow for such action to recourse [sic] with the customer. Please advise all subcontractors and suppliers that the only recourse that they will have is against Siemens.” The correspondence was signed with “[k]ind regards” by Arnold Schultz, Siemens’ senior project manager for the Welsh Project. In paragraph 17 of its complaint, Industrial contended that “By virtue of the letter [the above exhibit] . . . that sum [Free Flow’s alleged debt] became due by Defendant [Siemens] to Plaintiff.”

A contract of guaranty or suretyship is primarily one to pay the debt of another which may be due and payable by the principal debtor to the creditor upon default. Hartsfield Co. v. Shoaf, 184 Ga. 378, 380 (191 SE2d 693) (1937). “The contract of suretyship is one of strict law; and the surety’s liability will not be extended by implication or interpretation.” OCGA § 10-7-3. Nowhere in the fax did Siemens guarantee the debt of any specified entity or state that Siemens was agreeing to indemnify anyone or pay the obligations on behalf of anyone else. This fax failed to identify the principal debtor whom Siemens purportedly agreed to indemnify and failed to state that Siemens agreed to answer for that entity’s debt. In the absence of these essential terms, the fax does not constitute a contract of guaranty as a matter of law. Builder’s Supply Corp. v. Taylor, 164 Ga. App. 127, 128 (296 SE2d 417) (1982) (failure of document to state the identity of the entity whom guarantor agreed to indemnify is fatal). See Ellis v. Curtis-Toledo, Inc., 204 Ga. App. 704, 705 (2) (420 SE2d 756) (1992) and Northside Bldg. Supply Co. v. Foures, 201 Ga. App. 259, 260 (411 SE2d 87) (1991). Thus, despite Industrial’s claim that the fax constituted a “written indemnity contract,” it is apparent that as a matter of contract law, no guaranty exists and that even if it did, Siemens did not guarantee the indebtedness of Free Flow, who was not Siemens’ “customer.” See OCGA § 10-7-3 (contract of suretyship cannot be extended by implication).

Notwithstanding Industrial’s claim to the contrary, cases involving performance bonds or pledges are inapplicable because no performance bond or pledge was alleged to exist here. Compare Hendricks v. Blake & Pendleton, Inc., 221 Ga. App. 651, 652 (1) (472 SE2d 482) (1996); Mayer Elec. Supply Co. v. Fed. Ins. Co., 195 Ga. App. 191, 192 (393 SE2d 270) (1990); Noland Co. v. Commercial Ins. Co. &c., 141 Ga. App. 285, 286 (1) (233 SE2d 259) (1977). Similarly, Industrial’s reliance on Floyd Davis Sales, 197 Ga. App. at 533, is misplaced because the parties in that case, unlike here, were co-sureties.

In the absence of any contract for suretyship, the only remaining theory for Siemens’ liability is that it was a co-obligor on Free Flow’s purported debt. As previously noted, it is undisputed that Free Flow is not subject to the trial court’s jurisdiction. As a general rule, where a court lacks jurisdiction over a party, and the party cannot be joined to the action, a court “must determine, by considering the factors set forth in OCGA § 9-11-19 (b), if the necessary party is also an indispensable party without whom the action should not proceed.” Turner Outdoor Advertising, Ltd. v. Old South Corp., 185 Ga. App. 582, 584 (2) (365 SE2d 149) (1933). However, as the Supreme Court of Georgia has previously held, where joint obligors to a contract are not joined, as here, the case must be dismissed. Wall v. Wall, 176 Ga. 757, 759 (168 SE 893) (1933). Thus, even assuming for the sake of argument only that Siemens was a joint obligor for Free Flow’s alleged indebtedness, Free Flow was an indispensable party without whom the action could not proceed. Id.

Even if the action had not been foreclosed by the holding of Wall, supra, the trial court determined that Industrial failed to present any argument “in equity [or] good conscience” as to why the action should proceed. OCGA § 9-11-19 (b). Accordingly, the trial court’s dismissal was proper and must be affirmed. Turner Outdoor Advertising, 185 Ga. App. at 584 (2).

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., and Ruffin, J., concur. McMurray, P. J., Smith and Eldridge, JJ., dissent.

Decided December 5, 1997

Reconsideration denied December 18, 1997

John T. Longino, for appellant.

King & Spalding, Louis N. Jameson, Mitzi L. Hill, for appellee.

Smith, Judge,

dissenting.

I must respectfully dissent because I cannot agree that Free Flow is an indispensable party. Industrial’s case against Siemens depends upon whether the fax from Schultz constitutes a guaranty, i.e., it depends upon whether any guaranty existed. If it did, Industrial had the right to bring an action against Siemens severally. If no guaranty existed, then Siemens is not responsible at all. In either case, Free Flow is not an indispensable party, and the merits of the dispute between Free Flow and Siemens are being litigated in another action. Because Free Flow was not an indispensable party, the trial court erred in dismissing the action on that basis.

I am authorized to state that Presiding Judge McMurray and Judge Eldridge join in this dissent.

       About one month after Industrial filed the instant action, Free Flow sued Industrial, an Arizona corporation, in federal district court in Arizona. Free Flow sought declaratory relief and sued Industrial for breach of contract, breach of fiduciary duty, interference with prospective contractual relations, defamation, and an action on an account. The trial court here declined to speculate as to why Industrial did not seek relief against Free Flow in the federal action.

       The record contains a Memorandum of Understanding between Industrial and Free Flow in which they agreed inter alia: (1) that Free Flow was to act as an exclusive consultant to Industrial and (2) to form a U. S. company, Industrial Free Flow Company, as a division of Industrial.


author: Smith, Judge. Beasley, Judge,

text:
    A97A1533.
    LUNCEFORD v. PEACHTREE CASUALTY INSURANCE COMPANY.
    (495 SE2d 88)
   Smith, Judge.

The issue in this appeal is whether an automobile insurance policy issued by Peachtree Casualty Insurance Company (Peachtree) covers punitive damages. We conclude that the broad language of the policy encompasses this type of coverage, and we therefore reverse the trial court’s grant of summary judgment to Peachtree.

Terry Lunceford was involved in an automobile collision with Susan Brown. He filed suit against her and alleged, among other things, that she was driving while under the influence of alcohol. He sought damages for personal injuries and punitive damages. Peach-tree, Brown’s insurer, then brought this declaratory judgment action against Brown and Lunceford, contending that its policy did not cover punitive damages. The trial court concluded that the policy did not provide coverage for such damages and granted summary judgment to Peachtree. This appeal by Lunceford ensued.

1. The insurance policy provides the following with regard to coverage: “We will pay, on behalf of an insured person, damages for which any insured person is legally liable because of bodily injury and property damage arising out of an accident involving your insured car or a non-owned car.” We do not agree with Peachtree that this language plainly “does not provide coverage for punitive damages.” On the contrary, the language of the policy leads to the opposite conclusion. The coverage language is broad, encompassing “damages” without limitation. Although it contains an exclusion for bodily injury or property damage caused by intentional acts, the policy does not contain an exclusion for punitive damages. And the law is clear in this state that an insurer, “having affirmatively expressed coverage in broad promissory terms, has a duty to define any limitations or exclusions clearly and explicitly.” (Citations and punctuation omitted.) MAG Mut. Ins. Co. v. Gatewood, 186 Ga. App. 169, 173 (367 SE2d 63) (1988).

It is true, as argued by Peachtree, that the definitions section of the policy defines bodily injury, property damage, and accident without reference to punitive damages. And, as further argued by Peach-tree, the policy does not expressly recite that it will pay “all sums” that could be recovered against its insured. But the failure to use this language or to specifically reference punitive damages in the definitions section does not prevent coverage. Had Peachtree wished not to cover or to exclude punitive damages, it could have done so clearly and specifically. It did not, and consequently, it is bound by the broad language of the policy.

Peachtree cites two decisions in support of its argument that the policy language plainly excludes coverage for punitive damages. Both are inapposite. Both involve statutory construction of legislation rather than interpretation of an insurance contract. In O’Gilvie v. United States, 519 U. S._(117 SC 452, 136 LE2d 454) (1996) the United States Supreme Court interpreted 26 USC § 104 (a) (2) and examined the meaning of the language “damages received ... on account of personal injuries or sickness” in the context of whether punitive damages were excluded from gross income for tax purposes. Recognizing the ambiguity of the phrase, 136 LE2d at 460, the court applied rules concerning statutory interpretation and concluded that punitive damages were not included within the phrase at issue. In Roman v. Terrell, 195 Ga. App. 219 (393 SE2d 83) (1990), relied on by the trial court, we considered whether punitive damages were recoverable from an uninsured motorist carrier. We construed former OCGA § 33-7-11 (a) (1) as requiring a UM carrier “to compensate its insured for all sums the insured could recover from the tortfeasor because of bodily injury or property damage.” (Emphasis in original.) Roman, supra at 221 (2). Discussing the rationale behind awarding punitive damages, we did state that “[pjunitive damages are not awarded ‘because of’ . . . bodily injury . . . but rather ‘because of’ some aspect of the tortfeasor’s conduct which caused the victim’s loss.” Id. After concluding that the emphasized language was not plain, we used the rules of statutory construction and held that awarding punitive damages against a UM carrier did pot serve as a deterrence against the wrongdoer. Id. at 222.

Relying on Roman and O’Gilvie, Peachtree argues that since punitive damages address the tortfeasor’s behavior rather than monetary compensation for bodily injury, the phrase “because of bodily injury or property damage” in the insurance policy cannot encompass punitive damages. But Peachtree’s reliance on Roman and O’Gilvie ignores important distinctions between them and this case.

Different Code sections apply with regard to contract construction and statutory interpretation. See OCGA § 13-2-2, which sets out general rules concerning contract construction. Rules of statutory interpretation, though similar in some respects, differ in focus. See OCGA § 1-3-1; City of Buchanan v. Pope, 222 Ga. App. 716, 717 (1) (476 SE2d 53) (1996). Notably, statutes are construed sometimes broadly, sometimes narrowly, depending on their legislative purpose. Compare Smith v. Doe, 189 Ga. App. 264, 265-266 (375 SE2d 477) (1988) (uninsured motorist legislation to be construed broadly to effectuate legislative purpose of indemnifying person legally entitled to recovery from uninsured motorist) with McFrugal Rental of Riverdale v. Garr, 262 Ga. 369 (418 SE2d 60) (1992) (narrow construction of statute allowing custodian of public records to charge fee, since statute is burden on right of access to public records). In construing ambiguous language in insurance contracts, however, those ambiguities must be construed against the drafter. OCGA § 13-2-2 (5); Tifton Machine Works v. Colony Ins. Co., 224 Ga. App. 19, 20 (1) (480 SE2d 37) (1996). Here, we must examine the phrase as it appears in an insurance contract. Our analysis therefore must be governed through application of the rules of contract construction rather than those of statutory interpretation.

Examining this insurance policy and applying the rules concerning contract construction, we reiterate that the insurance policy does not clearly exclude punitive damages, and its coverage broadly addresses “damages.” It is therefore reasonable to conclude on this ground that the policy provides coverage. But the argument can also be made that the language “because of bodily injury or property damages” is ambiguous. The phrase at issue here is comparable to that construed in Greenwood Cemetery v. Travelers Indem. Co., 238 Ga. 313 (232 SE2d 910) (1977). The Supreme Court construed the word “for” in the context of a policy endorsement reciting that payment would be made “for mental anguish because of any professional malpractice, error or mistake in any conduct by the insured.” (Punctuation and emphasis omitted.) Id. at 316. The court found the word “for” to have several meanings: “ ‘equivalent to’ ” or “ ‘to the amount, value or extent of,’ ” as argued by the insurer, and “ ‘by reason of’ or ‘because of, on account of,’ ” as argued by the insured. Id. Because of this ambiguity, the court relied upon the longstanding rule that the “interpretation which favors the insured prevails. [Cit.]” Id.

Here, like the word “for” in Greenwood, the phrase “because of bodily injury or property damage” could reasonably be construed as meaning damages “equivalent to” or “to the extent of” compensation for bodily injury. In other words, the phrase could mean that the insurer would pay only those damages equal to the amount of damages for bodily injury or property damage. But as in Greenwood, another construction could be that the phrase means “by reason of” or “on account of.” Under this alternative interpretation, the insurer would be required to pay for all damages for which the insured is legally liable because a claimant was injured or his property damaged, including punitive damages. This construction, too, is reasonable. And where two or more equally logical constructions are possible, the contract is ambiguous and must be construed against the insurer. Greenwood, supra at 316. See generally Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 716 (4) (470 SE2d 659) (1996)..Accord-ingly, the phrase “because of bodily injury or property damages” must be construed against Peachtree as providing coverage for punitive damages under the latter interpretation.

We note Peachtree’s reliance on Brown’s application for insurance. Above her signature appears the following language in part: “Please be advised that this application for insurance does not include a request for punitive damage coverage. Punitive damages are damages which are sometimes awarded by a court or jury to punish or deter someone [whose] conduct is so irresponsible and without regard for the safety of others that punishment is in order.” OCGA § 33-24-16 provides that “[e]very insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any . . . application made a part of the policy’’ (Emphasis supplied.) See also West v. Rudd, 242 Ga. 393, 395, n. 1 (249 SE2d 76) (1978). But here, the application was not expressly made part of or incorporated by reference into the insurance policy, and in fact, it recites that Brown understands that it is not “a binder of coverage and may be bound, accepted, rejected, or modified by the company upon receipt.” Because the application was not made part of the policy, we reject Peachtree’s argument that it was entitled to partial summary judgment based on the application.

Moreover, even if the application were incorporated by reference into the policy, “[i]t does not follow . . . that the language of the application form is controlling over the language of the policy if the two are in conflict.” Rogers v. Southeastern Fidelity Ins. Co., 181 Ga. App. 864 (354 SE2d 199) (1987). While the application form indicates that Brown did not request coverage, the form also indicates that Peachtree had no obligation to issue a policy on the same terms. The policy language, as discussed above, at best broadly covers all damages and, at worst, is ambiguous with respect to punitive damages and nevertheless must be construed against Peachtree. The application therefore merely adds another ambiguity, and we must continue to interpret the policy in favor of the insured. Id.

2. Peachtree also contends that “public policy precludes requiring a tortfeasor’s insurer to pay for punitive damages awarded under OCGA § 51-12-5.1.” It maintains that the language of this statute “unequivocally demonstrates” the legislature’s intention that punitive damages punish or deter the tortfeasor and not that “tort defendants shift responsibility for punitive damage awards to an innocent insurer.”

This argument is controlled adversely to Peachtree by our holding in Fed. Ins. Co. v. Nat. Distrib. Co., 203 Ga. App. 763 (417 SE2d 671) (1992) that recovery of punitive damages in the liability context does not contravene public policy. Id. at 768 (3). Peachtree points out that we relied on Greenwood, supra, in Federal and argues that the statutory and analytical framework of Greenwood is not applicable to punitive damages in light of the enactment of OCGA § 51-12-5.1 after Greenwood was decided. But this argument ignores our express decision in Federal that the enactment of OCGA § 51-12-5.1 did not supersede the Supreme Court’s holding in Greenwood that insurance against punitive damages is legislatively authorized. 203 Ga. App. at 768. See also Greenwood, 238 Ga. at 316.

Nor is the absence of express legislation actually reciting that liability insurance may cover punitive damages, as argued by Peach-tree, fatal to recovery of such damages. It is true that the Supreme Court stated in Greenwood, “In the absence of express legislative authority it might well be said that such contracts were against public policy.” (Punctuation omitted.) Id. at 316-317. But this language is dicta. The court stated only that insurance against punitive damages in the absence of legislation might be against public policy. Moreover, the absence of express legislation does not affect the freedom to contract. “ ‘[I]t is axiomatic that, as long as the provisions of a given contract are in compliance with the requirements of governing statutes, the parties to the contract may include provisions different from, or more liberal than, those prescribed in the statute or statutes.’ ” Moore v. State Farm Mut. Auto. Ins. Co., 196 Ga. App. 755, 757 (397 SE2d 127) (1990). Peachtree’s argument does not support deviation from our holding in Federal and the Supreme Court’s ruling in Green wood. We simply cannot agree with Peachtree that liability insurance against punitive damages is forbidden in this state.

We also note Peachtree’s reliance on Roman, supra, to argue that insuring against punitive damages contravenes public policy. Roman does state that “allowing punitive damages to be awarded against an insurance company can serve no deterrent function because the wrongdoer is not the person paying the damages.” (Citation and punctuation omitted.) Roman, supra at 222. But Peachtree fails to point out in its appellate brief that after reciting this language, this Court in Roman went on to recognize the deterrent effect of insuring against punitive damages in the liability coverage, as opposed to UM coverage, context. We stated that “at least some relationship to deterrence is possible in the liability insurance area, because it is the tortfeasor insured’s premiums which would be raised to cover the carrier’s payout.” (Emphasis in original.) Id. Roman therefore is not authority for judicially imposing a public policy ban on insurability of punitive damages.

Judgment reversed.

McMurray, P. J., Ruffin and Eldridge, JJ, concur. Andrews, C. J, Birdsong, P. J., and Beasley, J., dissent.

Beasley, Judge,

dissenting.

I respectfully dissent.

First, the majority opinion reaches beyond the sole issue in this case and rules that the insurance policy covers punitive damages. Lunceford, defendant in this declaratory judgment action, did not move for summary judgment, the trial court did not deny summary judgment to Lunceford, his entitlement to summary judgment was not briefed below, and he does not assert on appeal that he is entitled to summary judgment. His enumeration of error is that “the trial court erred in granting summary judgment to Appellee, Peachtree Casualty Insurance Company.” Yet the majority opinion concludes that “the phrase ‘because of bodily injury or property damages’ must be construed against Peachtree as providing coverage for punitive damages” and that “we must continue to interpret the policy in favor of the insured.” The majority in effect rules that Lunceford is entitled to summary judgment.

But issues not raised and ruled on by the trial court are not decided in this Court. Ford Motor Co. v. Tippins, 225 Ga. App. 128, 130 (1) (483 SE2d 121) (1997); Butler v. State, 172 Ga. App. 405, 406-407 (1) (323 SE2d 628) (1984). We do not create and then rule on cross-motions for summary judgment.

At most in this case, Lunceford would be entitled to raise the issue in the trial court if this case were properly reversed, that is, if Peachtree is not entitled to summary judgment.

The second reason for this dissent is that the policy does not cover punitive damages. The trial court correctly applied the rules of interpretation for contracts as found in OCGA § 13-2-2 and came to this conclusion. The undisputed facts support it.

“The cardinal rule of construction is to ascertain the intention of the parties.” OCGA § 13-2-3; Irvin v. Laxmi, Inc., 266 Ga. 204, 205 (1) (467 SE2d 510) (1996); Hull v. Lewis, 180 Ga. 721 (180 SE 599) (1935). Parol evidence outside the four corners of the contract itself may explain a contract, by way of proving the attendant and surrounding circumstances, when there is ambiguity in the terms. OCGA § 13-2-2 (1). Immediately above the insured’s signature on the application for insurance in a box marked “APPLICANT’S STATEMENT — READ BEFORE SIGNING,” there is a paragraph designated “PUNITIVE DAMAGES.” Therein is the statement, quoted in part in the majority opinion, that the application does not include a request for punitive damages, explaining when and why punitive damages can be awarded in cases in general, and concluding with the information: “Punitive damages are damages which may be awarded above the actual costs of: (1) Repairing/replacing other people’s property; or (2) the actual medical expenses and pain and suffering that you might accidentally cause in an accident.” In the portion of the application designated “COVERAGE & RATING” and “PREMIUMS MUST BE SHOWN HERE,” there is no listing for punitive damages coverage or a punitive damages premium.

It was thus made abundantly clear that punitive damages are a category separate from the two covered categories described, that the policy would not cover punitive damages, and thus that the premium charged for the policy, as specified immediately below Brown’s signature, did not include such coverage.

The policy itself was in conformity with this and plainly stated, in straightforward fashion, what was covered. The whole contract is to be examined in arriving at the construction of any part. OCGA § 13-2-2 (4).

In the middle of the front page, whereon all the particulars with respect to this specific policy are shown, it is stated: “THERE IS NO COVERAGE PROVIDED UNDER THIS POLICY UNLESS A SPECIFIC PREMIUM CHARGE IS SHOWN BELOW.” Charges are listed for four categories of coverage: “Bodily injury Liability,” “Property Damages Liability,” “Damage to your auto — other than Collision,” and “Damage to your auto — Collision.” There is nothing for punitive damages.

The provision quoted at the outset of Division 1 of the majority opinion constitutes the insurer’s promise to pay. It is near the beginning of “Part I — LIABILITY TO OTHERS,” which starts out by naming the types of coverage included: “Coverage A — Bodily Injury. Coverage B — Property Damage.” In the quoted provision, the words “bodily injury” and “property damage” are in bold print. In the definitions portion of the policy on the first narrative page of the policy, “Bodily Injury” is defined as meaning “bodily harm to a person and sickness, disease or death that results from it.” “Property Damage” is defined as meaning “damage to or destruction of tangible property.” “Accident,” as used in the provision, is defined as meaning “an unexpected and unintended event that causes bodily injury or property damage and arises out of the ownership, maintenance or use of a car.” Again, the words “bodily injury” and “property damage” are in bolder print.

There is no mention anywhere of punitive damages. Such did not have to be listed among the “Exclusions” because punitive damages are not part of bodily injury damages or property damages in the first place. Indeed, such an exclusion from either one of these two categories would be out of place. Explicitly covered were only those monetary damages which were related to bodily injury and property damage. Monetary damages related to anything else were obviously not covered. Punitive damages are for “something more” than damages for bodily injury and property damage. See Uniroyal Goodrich Tire Co. v. Ford, 218 Ga. App. 248, 254 (3) (b) (461 SE2d 877) (1995), rev’d on other grounds, Ford v. Uniroyal Goodrich Tire Co., 267 Ga. 226 (476 SE2d 565) (1996).

Punitive damages relate to the tortfeasor’s lack of respect for others’ well-being, as described in OCGA § 51-12-5.1 (b), the statute authorizing them in limited circumstances. They are to punish the wrongdoer, and they constitute an award beyond full compensation for the injuries and damage inflicted on the victim. As stated in Roman v. Terrell, 195 Ga. App. 219, 221 (2) (393 SE2d 83) (1990), “[p]unitive damages are not awarded ‘because of’ the bodily injury or property damage sustained by the victim, but rather ‘because of’ some aspect of the tortfeasor’s conduct which caused the victim’s loss: wilfulness, perhaps, or some other aggravating circumstance which prompts the desire to punish the wrongdoer and prevent similar conduct in the future.”

Whether utilizing this logic in statutory interpretation, as in Roman, or in contract construction, as here, the result is the same. It is a matter of the meaning of common English words used. “Because of” was equated with “on account of” by the United States Supreme Court in O’Gilvie v. United States, 519 U. S._(117 SC 452, 136 LE2d 454) (1996), in describing the meaning of “on account of.” The Court wrote that other ways of putting the same relational concept, again drawing on the dictionary, are “for the sake of” or “by reason of.” That case dealt with whether punitive damages arise “on account of” personal injury.

Punitive damages are not awarded “for the sake of” or “by reason of” or “on account of” bodily injury or property damage. This means that they are not awarded “because of” bodily injury or property damage either. If Brown is found legally liable for punitive damages, she is not “legally liable” for punitive damages “because of bodily injury [or] property damage” but rather because of her reprehensibly irresponsible conduct. The policy covers only compensation.

Decided December 5, 1997

Reconsideration denied December 18, 1997

Freedman & Sinowski, Marc H. Bardack, for appellant.

Chambers, Mabry, McClelland & Brooks, Douglas F. Aholt, Beth S. Reeves, for appellee.

Dawson & Huddleston, Patrick A. Dawson, amicus curiae.

The trial court’s order granting summary judgment to Peachtree should be affirmed.

I am authorized to state that Chief Judge Andrews and Presiding Judge Birdsong join in this dissent.

       The trial court entered a default judgment against Brown in favor of Peachtree based on Brown’s faitee to answer Peachtree’s complaint for declaratory judgment.