Sims T. V., Inc. v. Fireman's Fund Insurance

On Motion eor Rehearing.

In its motion for a rehearing the plaintiff in error contends that this court in ruling as it did in Division 4 of its opinion overlooked the fact that the trial judge in his opinion written in this case did not hold that the representative of the plaintiff in error with whom the process was left was an agent of the corporation upon whom service could be had and further that the ruling by this court that he was such an agent is contrary to the opinion and judgment of this court in the related case of Clements v. Sims T. V., Inc., 105 Ga. App. 769 (125 SE2d 705). These contentions are not meritorious.

It is fundamental that a judgment of a trial court which is right will be affirmed on appeal even though the trial judge in rendering his judgment may have assigned a wrong reason therefor. This is true whether the judgment be one involving solely a question of law, or one involving merely a question of fact. Fidelity &c. Co. v. Norwood, 38 Ga. App. 534, 550-1 (5) (144 SE 387); Walden v. Barwick, 72 Ga. App. 545, 548 (2) (34 SE2d 552); Moody v. Foster, 74 Ga. App. 829, 835 (2b) (41 SE2d 560); U. S. Cas. Co. v. Richardson, 75 Ga. App. 496, 500 (2) (43 SE2d 793). Error cannot be assigied on the reasons given by the trial judge for his decision. They form no part of *44his judgment, and the appellate court in reviewing that judgment is not concerned with them. Broyles v. Kirkwood Court Apts., 97 Ga. App. 384 (103 SE2d 97); Griffith v. Finger &c. Mfg. Co., 115 Ga. 592 (41 SE 993); Malone v. Glover, 173 Ga. 780 (161 SE 602).

The judgment of this court in the former case was not res judicata as to the status of the plaintiff’s representative, Mr. Kittleson, who received the process. This is true for several reasons. That litigation was between Sims T. V. Inc. and Clements, the plaintiff there. This suit is between Sims T. V. Inc. and its insurer. The defendant here was not a party to the former case. The parties in the two cases are not the same. Floyd & Lee v. Boyd, 16 Ga. App. 43 (3) (84 SE 494); Atkinson v. Drake, 212 Ga. 558 (1) (93 SE2d 702). Furthermore, there is no identity of causes of action between the two cases. The former case was an action for damages against Sims T. V. Inc., the plaintiff here. On the hearing of the defendant’s motion to set aside the default judgment obtained by the plaintiff in that case, the question involved was whether the defendant had been served in a way and manner provided by law. Here the action was by the plaintiff against its insurance carrier to compel it to pay the judgment finally rendered against the insured in that case. Clearly there was no identity of causes of action. Missouri State Life Ins. Co. v. Lovelace, 1 Ga. App. 446 (1) (58 SE 93); Austin v. Central of Ga. R. Co., 3 Ga. App. 775, 778 (61 SE 998); Linder v. Rowland, 122 Ga. 425 (2) (50 SE 124).

Finally, the issue in the former case with respect to Mr. Kittleson’s status, if in fact it was adjudicated, was whether he was an agent of the corporation upon whom service might be perfected. Here the issue was whether Mr. Kittleson was a representative of the corporation within the meaning of that term as used in the policy of insurance so as to authorize the conclusion that receipt by him of the process would constitute receipt by the insured and require the insured, under the terms of the policy, to forward the process to the insurance company in order to make the insurance company liable for the payment of the judgment. The two are not synonymous, but even if they are, the evidence adduced in the two cases was not the same, *45as revealed by a comparison of the brief of evidence in that case with the brief in this case. We have outlined in the foregoing opinion the substance of the evidence which authorized the finding that Mr. Kittleson was a representative of the plaintiff within the meaning of that term as used in the insurance policy, and we will not burden the record by repeating that evidence here. In the trial of Sims T. V. Inc. v. Clements the only evidence with relation to Mr. Kittleson’s authority was that he was a mere employee and that he had nothing to do with the management of the company. The evidence in this case goes much further, as we have shown, and clearly authorized a contrary finding.