Opinion
40474.
DECIDED JANUARY 22, 1964.
Fraud and deceit. Fulton Superior Court. Before Judge Tanksley.
O'Kelley, Hopkins Van Gerpen, William C. O'Kelley, for plaintiffs in error.
John K. Calhoun, contra.
1. In a fraud and deceit action against an insurance agent, alleging a misrepresentation that a binder had been issued under which the plaintiffs were insured, the cause of action did not accrue under the facts here until plaintiffs received possession of the writing which supposedly constituted the "binder." Demurrers seeking to interpose the bar of the statute of limitation were properly overruled where the petition showed either no date of plaintiffs' possession of the writing or a date within the statutory period.
2. The petition set out a cause of action for fraud and deceit.
DECIDED JANUARY 22, 1964.
This two count petition was filed against Pope and his employer, Harrell Company, an insurance agency. Damages for fraud and deceit were sought alleging a misrepresentation to plaintiffs that their property was covered by insurance.
The facts alleged in count 1 can be summarized as follows: Plaintiffs had been dealing with Pope as their insurance agent for a period of time and had six policies in force in October, 1957. One was a "blanket" policy covering eight properties at issuance in January, 1957. Between January and October, 1957, one of the plaintiffs had called Pope by telephone several times either adding or removing property from this policy's coverage. Each time property was added, Pope had responded "You are insured," "I got you covered" or the like. On October 11, 1957, Pope was called again and requested to add to the policy coverage four duplexes on Cleveland Avenue in East Point. Pope assured plaintiffs that the property was covered by a binder as had been done with the previous additions to coverage. Fire damaged two of the duplex units November 3, 1957, and a claim was filed against the insurance carrier through the defendants November 8, 1957. The claim was denied January 27, 1958, and suit was later instituted in the United States District Court against the carrier. The court ruled February 16, 1960, that the writing produced was not a valid binder. This suit was then instituted March 14, 1962.
The allegations in count 2 are similar except for the additional facts that plaintiffs requested to see the binder after their claim was denied and the defendants promised to mail it to them immediately, but did not do so and they did not receive a copy of the binder until "about June 12, 1958."
Both defendants filed general demurrers, including therein the bar of the statute of limitation. All general demurrers were overruled and the defendants excepted.
1. Initially we consider whether the demurrers raising the statute of limitation ( Code §§ 3-1002, 3-1003) should have been sustained. It is well settled that demurrers raising this issue are good only if the petition shows on its face that the statute has run. Georgia Procedure Practice 785, § 29-23 (1).
Measured by this yardstick, how stands the petition? Count 2 alleges specifically that the first time plaintiffs saw the writing which defendant allegedly misrepresented as a valid insurance binder was "about June 12, 1958." It is also alleged that plaintiffs requested defendants to send the binder to them immediately after the claim was denied in January, 1958, but that defendants did not and "had no intention of mailing petitioners a copy of said alleged binder." It is further alleged that, despite plaintiffs' requests, defendants intentionally withheld the binder until June, 1958. The latter date is within the four year statutory period of limitation and the action on count 2 is not barred.
Count 1 presents a slightly different situation. There no dates are alleged as to any event between the denial of the claim (January, 1958) and the adverse judgment in Federal court (February, 1960). Therefore, we conclude that the necessary dates not appearing on the face of the petition, it does not show the action to be barred. A defendant is not without remedy in this situation, as any relevant date can be elicited by special demurrer. Warren v. Powell, 122 Ga. 4 ( 49 S.E. 730). Then, if the bar of the statute applies, the material amendment to the petition opens it to demurrer on that ground, or a plea of the statute of limitation may be filed.
2. As to the general grounds of the demurrers, the petition alleges sufficiently the necessary elements of fraud and deceit. As we view it, the misrepresentations as to the issuance of a binder were misrepresentations of fact until the plaintiffs received a copy. Only then could they evaluate the effectiveness of the "binder," this being a question of law. The facts here are quite similar to those presented in Clark v. Kelly, 217 Ga. 449 ( 122 S.E.2d 731), in which it was held that the petition stated a cause of action for fraud and deceit. Assuming the validity of the defendants' contention that an insurance binder must have been in writing in 1957, the misrepresentation alleged is that the binder had been in fact issued when it had not, and not that an oral binder was made.
All of the general demurrers were properly overruled.
Judgment affirmed. Bell, P. J., and Jordan, J., concur.