Farley v. Continental Ins. Co., s. 57631-57633
| Decision Date | 04 September 1979 |
| Docket Number | Nos. 57631-57633,s. 57631-57633 |
| Citation | 258 S.E.2d 8,150 Ga.App. 389 |
| Parties | FARLEY v. CONTINENTAL INSURANCE COMPANY. FARLEY v. TRAVELERS INDEMNITY COMPANY. FARLEY v. TRANSPORT INDEMNITY COMPANY. |
| Court | Georgia Court of Appeals |
Schuder & Hartness, Edward I. Hartness, Gainesville, for appellant.
Joseph H. Davis, Macon, Savell, Williams, Cox & Angel, Edward L. Savell, Elmer L. Nash, Michael J. Goldman, Atlanta, for appellees.
The appellant was injured when his vehicle was struck by a truck belonging to Wood Trucking Company, a motor carrier operating under a Class B certificate of use and convenience granted it by the Georgia Public Service Commission. In lieu of the bond otherwise required in such cases, which is expressly stated to be for the benefit of the public, the Commission may allow the certificate owner to substitute an insurance policy "which policy must substantially conform to all of the provisions relating to bonds and must likewise be approved by the commission." Code § 68-509.
The sole question for decision is whether the action against the insurance companies sounds in tort or contract. The original tort action was filed by Farley against Wood Trucking Company for personal injuries within the two-year tort statute for limitation of actions. The insurance companies were attempted to be joined as party defendants slightly more than two years (but of course less than six years) from the date of the collision. They all pleaded that the action against them was barred by the statute of limitation, and the trial judge granted a motion of each for judgment on the pleadings.
We reverse. The joinder of an insurer approved by the Georgia Public Service Commission in lieu of a bond is an action Sui generis which proceeds on the theory that the policy, like the bond, is for the benefit of the public, and an injured plaintiff who seeks recovery of damages out of the policy amount is a sort of third party beneficiary of the contract between the carrier and the insurer. In its original form (and at a time when there were strict rules of pleading forbidding the joinder of a cause of action sounding in tort with one sounding in contract) it was held that the intendment of Ga.L.1931, Extra Session, pp. 99, 105 (now Code § 68-509) was that the policy Great American Indem. Co. v. Vickers, 183 Ga. 233, 236, 188 S.E. 24, 26 (1936). This case then continues: "The cause of action is not on the tort, but on the contract by alleging the occurrence of the condition precedent required by the statute, which statute is an integral part of the contract of insurance" and then analogizes the suit to one against a surety on an obligation of the principal: "(T)he substance and not the form of the contract is the material factor in determining the right to sue directly. . . ." It was further held in Russell v. Burroughs, 183 Ga. 361, 188 S.E. 451 (1936) that under the pleading rules then obtaining a plaintiff could not bring a joint action against a motor common carrier and its insurer for damages because this impermissibly joined an action in tort against the carrier with an action in contract against the insurer. Apparently due to this decision, Ga.L.1937, pp. 727, 728 added to Code § 68-509 the following: ...
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