Opinion
39296.
DECIDED APRIL 5, 1962. REHEARING DENIED APRIL 26, 1962.
Complaint. Clarke Superior Court. Before Judge Cobb.
Guy B. Scott, Jr., for plaintiff in error.
Hamilton Napier, Nicholas P. Chilivis, contra.
1. The motion to dismiss the writ of error is denied.
2. Under the authority of Lowance v. Dempsey, 99 Ga. App. 592 ( 109 S.E.2d 318), the attorney who purported to act for the plaintiff in this case was without authority to file suit in his behalf, and, a proper motion having been filed in the case challenging his authority, it should have been sustained.
DECIDED APRIL 5, 1962 — REHEARING DENIED APRIL 26, 1962.
On February 26, 1960, Raymond Lydick's automobile was damaged when it was struck by a cab owned and operated by Co-Op Cab Co. Lydick had $100 deductible collision coverage with Reliance Insurance Co., and upon the submission of proofs of loss showing damages in the amount of $1,000, Reliance paid Lydick the sum of $900, taking a loan receipt therefor. In this loan receipt Lydick pledged as security for the repayment of the loan to Reliance whatever recovery he might secure from the person or persons causing the damage to his automobile, and he agreed to promptly enter his claim and prosecute suit against the person responsible. Thereafter, Hamilton Napier, styling himself as "Attorney for Petitioner," brought suit in the superior court in Lydick's name against Co-Op Cab Co. seeking to recover $854.95 damages on account of the collision. This suit was duly served and the defendant appeared and filed demurrers and an answer. On August 17, 1961, Lydick, represented by Attorney Guy B. Scott, Jr., filed a verified motion in the case in which he alleged that Napier had no authority to represent him in bringing the suit, and he prayed that a rule nisi should issue requiring Napier to show cause why the suit should not be dismissed without prejudice and that he be relieved of all the consequences of the action of Napier. This motion was sanctioned by the trial judge and upon the same coming on to be heard the parties stipulated the following facts: (1) Lydick did not directly employ Napier to represent him. (2) Lydick employed Scott to bring suit against the cab company and Scott brought suit in the City Court of Athens on April 18, 1961. (3) Napier was authorized to bring suit in the Clarke Superior Court on behalf of Lydick by a letter of authority from Reliance Insurance Co., the authority of Reliance being based on the loan receipt. Attached to the stipulation as an exhibit was a copy of the suit filed by Scott in the city court in which it was alleged that the fair market value of the plaintiff's automobile prior to the collision was $1,218.85; that the fair market value of the automobile after the collision was $25, and that the actual loss and damage suffered by plaintiff was $1,193.15. In addition to seeking the aforesaid actual damages, that petition also sought recovery of $750 as exemplary damages, making a total amount prayed for of $1,943.15. After considering the stipulation and exhibits attached thereto, the court denied Lydick's motion and the exception here is to that judgment.
1. In the bill of exceptions transmitted to this court only Napier is named as defendant in error and he has made a motion to dismiss the writ of error in this court on the ground, among others, that an essential party has not been named as defendant in error and served with a copy of the bill of exceptions. Under the facts outlined above, it is clear that Co-Op Cab Co., the defendant in the main suit, has a substantial interest in upholding the judgment of the trial court and is, therefore, a necessary party in this court. In this suit the recovery sought is based on simple negligence of the defendant and the prayer merely seeks to recover the actual damages to the plaintiff's automobile. On the other hand, the copy of the suit in the city court which is attached as an exhibit to the stipulation shows that a somewhat larger sum is being sought as actual damages and that, in addition, plaintiff claims the right to recover exemplary damages. Napier became a party to the case in the lower court when he was served with Lydick's motion and the judge's order requiring him to show cause why the prayers of that motion should not be granted, and, having thus become a party to the case in the lower court, he does have such an interest in upholding the judgment as makes him a proper party and we have, therefore, made Co-Op Cab Co. a party defendant in error under the provisions of Code § 6-1202 as amended. The motion to dismiss the writ of error is, therefore, denied.
2. The loan receipt signed by Lydick in this case is identical in wording with the loan receipt in Lowance v. Dempsey, 99 Ga. App. 592 ( 109 S.E.2d 318). In that case, it was held in effect that the attorney for the insurance company was not authorized to bring a suit on behalf of the insured solely on the authority of such a loan receipt. In fact, the loan receipt does not in any sense purport to convey authority to the insurance company to bring suit on behalf of the insured against the parties responsible, but obligates the insured to bring the suit himself. In that case, it was held that the record demanded the finding of the superior court that the attorney acting for the insurance company in bringing suit in the name of the insured was without authority and that the plaintiff should be relieved of the consequences of his actions. The motion in this case was a direct attack on the authority of the attorney who purported to represent Lydick and was clearly brought under the terms of Code § 9-603. Under the facts appearing in the record in this case, the trial court erred in denying Lydick's motion.
Judgment reversed. Eberhardt and Russell, JJ., concur.