Smith v. Smith ( 1949 )

1. The jury was fully authorized to find from the evidence that the plaintiffs had not proven the allegations of the petition. Accordingly, it can not be held by this court that a verdict for the defendants is contrary to the evidence or without evidence to support it.

2. When a particular finding on any issue made by the pleadings is demanded by the evidence, an erroneous charge respecting the same will not require a reversal.

No. 16652. JUNE 15, 1949. Mrs. L. G. Smith was appointed guardian of the person and property of L. G. Smith, an incompetent person, at the March term, 1944, of the Wilkes County Court of Ordinary. She qualified as such on May 11, 1944, and Employers' Liability Assurance Corporation, Limited, signed her bond. L. G. Smith died on June 17, 1944, intestate, and it is admitted that Mrs. Smith and the surety on her guardian's bond became responsible for a proper administration of his estate. On January 3, 1948, L. M. Smith and six others, the children of L. G. Smith and his first wife, brought a suit against Mrs. Smith, as administratrix, and the surety on her bond. Dessie Smith Scarborough and Ethel Neal Smith were afterwards made parties defendant. The petition, after being amended, alleged: that during 1943 the defendant, Mrs. Smith, converted to her own use $1200 which the deceased L. G. Smith had deposited in a bank to his account, the same being proceeds which he had received from the sale of certain timber; that during February and March, 1944, she converted to her own use 29 bales of cotton, valued at $3000, which belonged to L. G. Smith; that after the death of L. G. Smith she disposed of certain livestock belonging to his estate, valued at $1000, and converted the proceeds to her own use; that on May 2, 1942, the defendant Mrs. Smith, by undue influence, at a time when L. G. Smith was ill and mentally incompetent to transact business, persuaded him to convey to her his home place consisting of 121 acres, a stock of merchandise, his farm machinery, farming tools, and a 1931 Chevrolet automobile; that on October 22, 1942, she converted to her own use $375 belonging to L. G. Smith which he had received from the sale of a city lot in Tignall, Georgia; that on July 8, 1943, the defendant Mrs. Smith, through undue influence, at a time when L. G. Smith was mentally incompetent, persuaded him to execute and deliver to her a trust agreement setting apart from his estate $1600 for the use and benefit of their two minor children, Dessie Smith Scarborough and Ethel Neal Smith, which agreement contained a provision that the trust was to be administered, after his death, by the defendant, Mrs. Smith, without bond and with power to invest the funds as she thought best; that from September, 1943, to September, 1944, the defendant, Mrs. Smith, purchased three of four automobiles with funds belonging to L. G. Smith and has failed and refused to account for the money so expended; and that the defendant, Mrs. Smith, has made gifts to her minor children from funds belonging to L. G. Smith and has failed to account for the same. It was further alleged that Mrs. Smith was solvent at the time she executed her bond as guardian and could have made good the several sums of money which she converted or misappropriated. It was also alleged that an annual return filed by the defendant, Mrs. Smith, in the court of ordinary is incomplete and fraudulent because it fails to account for the property which she converted to her own use.

There was no demurrer to the petition, but the defendants filed answers denying that Mrs. Smith had converted to her own use any property belonging to L. G. Smith, or that she had otherwise misused any of the assets of his estate. It was also positively denied that Mrs. Smith was solvent when she executed her bond as guardian. On the trial the plaintiffs introduced evidence, but the defendants offered none. A verdict for the defendants was returned by the jury. A motion for new trial was timely filed and afterwards amended by adding a ground complaining of the charge. The exception is to a judgment overruling the amended motion. 1. Headnote 1 requires no elaboration.

2. The court, at the request of the plaintiffs, charged the jury as follows: "Now, gentlemen, I charge you this is a suit against Mrs. L. G. Smith as administratrix of the estate of Mr. L. G. Smith, her deceased husband, and the Employers' Liability Assurance Corporation, Limited. I charge you that the surety on an administrator's bond, executed after the principal, the administrator, has converted property of her deceased intestate to her own use, is liable upon the bond as for a breach of the obligation thereof, if at the time of the execution of the bond the administratrix, Mrs. Smith in this case, was solvent and could have made good her misappropriation but failed to do so, in case you find there was any misappropriation in the light of the charge that I have just given you.

"And in this case if the administratrix, Mrs. L. G. Smith, was solvent at the time her bond, the bond sued on in this case, became effective, or at any time during its currency, and she failed to collect from herself amounts for which she was personally liable to the estate, she committed a breach of the bond, for which she and her surety, the Employers' Liability Assurance Corporation, Limited, are answerable without any retrospective construction of the obligation of the bond; for after the bond became effective it was just as much her duty not to neglect to collect a solvent debt from herself as it was not to neglect to collect a solvent debt from a third person. And this is true even though her debt arose by reason of the fact that she had converted the property of the estate to her own use before the time the bond became effective.

"You will look to the evidence, gentlemen, to determine whether or not Mrs. Smith converted any sums from the estate to her own use and to determine whether or not Mrs. Smith was solvent at the time the Employers' Liability Assurance Corporation, Limited, signed the bond. Before the plaintiffs in this case would be authorized to recover anything from the surety in this case, the Employers' Liability Assurance Corporation, Limited, you must first determine from the evidence that Mrs. Smith converted sums of the estate to her own use, and the amount of these sums, and then you must go further and determine from the evidence that Mrs. Smith was solvent and could have made good the misappropriation at the time the bond was signed, or at any time afterwards, but failed to do so."

The amended motion for new trial complains because the trial judge in this connection also charged the jury: "Now bearing that principle in mind, I charge you this principle — I charge you that this suit is against Mrs. L. G. Smith, guardian and ex-officio administratrix of the estate of L. G. Smith and her surety, Employers' Liability Assurance Corporation. As a defendant in this case, Employers' Liability Assurance Corporation is not liable for any act of Mrs. Smith which was not done in her official capacity as guardian or as ex-officio administratrix of Mr. Smith, and therefore that company could not be liable for any act of Mrs. Smith which occurred before she was appointed guardian. I charge you that and state that this principle of law which I have just previously charged you is also applicable." The criticism of the excerpt complained of is this: (1) it was, under the facts in this case, erroneous and not sound as an abstract principle of law; (2) it was confusing to the jury; (3) it was misleading to the jury; and (4) it was injurious to the plaintiffs because a correct principle of law had just been given at the request of the plaintiffs, and the effect of the charge complained of was to withdraw it from the jury. In the circumstances of this case there is no merit in this ground of the motion. As shown by our statement of facts, the defendants denied all of the allegations of the petition concerning the solvency of Mrs. Smith, and on the trial the plaintiffs offered no proof to establish the truth of them. Consequently upon this theory of the plaintiffs' case the evidence demanded a finding in favor of the surety corporation (Fidelity Deposit Company ofMaryland v. Norwood, 38 Ga. App. 534 (3), 144 S.E. 387); and the charge complained of, even if erroneous for any reason assigned, will not require a reversal of the case. Lunsford v.Armour, 194 Ga. 53 (20 S.E.2d 594); Richardson v.Hairried, 202 Ga. 610 (44 S.E.2d 237).

Accordingly, there is no merit in the exception to the judgment overruling the plaintiffs' amended motion for new trial.

Judgment affirmed. All the Justices concur. Wyatt, J.,concurs in the result.