
    Pearl Assurance Company Limited v. Bernath et al.
    
    No. 11975.
    March 18, 1938.
   Russell, Chief Justice.

1. In this suit by a citizen of Georgia against a non-resident insurance company and its resident agent, it appears from the petition, fairly construed, that the plaintiff is seeking first and mainly to recover against both as on the contracts of insurance issued by the company through its agent, and alternatively to recover against both upon the theory of fraud in the conduct of the agent. Central R. Co. v. Pickett, 87 Ga. 734 (13 S. E. 750) ; Citizens & Southern Bank v. Union Warehouse & Compress Co., 157 Ga. 434 (9), (10), 454 (122 S. E. 327).

2. The plaintiff could not recover on the contracts against both the company and its agent, since, the agency being disclosed, the agent would not be liable on the contracts in the absence of an express undertaking on his part. Gill v. Tison, 61 Ga. 161; Peeples v. Perry, 18 Ga. App. 369 (89 S. E. 461); Ruffner v. Dunlop, 32 Ga. App. 693 (124 S. E. 544); Pelotte v. Simmons, 41 Ga. App. 198 (4), 200 (152 S. E. 310); 2 C. J. 806; 21 R. C. L. 847.

3. It follows that the petition, so far as it seeks a recovery on the policies, presents a separable controversy as between the plaintiff and the non-resident insurance company; and this being true, and the amount claimed being more than $3000, the action was subject to removal to the United States court, notwithstanding the controversy in relation to liability in tort may be joint as against both the company and its agent. Southern Ry. Co. v. Edwards, 115 Ga. 1022 (42 S. E. 375) ; Atlantic Coast Line R. Co. v. Bryant, 7 Ga. App. 703 (67 S. E. 1049) ; McKenzie v. Standard Oil Co., 31 Ga. App. 615 (121 S. E. 847) ; Pan-American Petroleum Cor. v. Williams, 45 Ga. App. 490 (165 S. E. 473); Armour & Co. v. Bowden, 50 Ga. App. 476 (3) (178 S. E. 394). The court erred in overruling the petition for removal, filed by the insurance company. Judgment reversed.

All the Justices concm-.

Haas, Gambrell & Gardner, for plaintiff in error.

A. S. Grove and Green & Michael, contra.  