Holman v. American Auto. Ins. Co.
| Docket Number | 15570. |
| Decision Date | 06 September 1946 |
| Citation | 39 S.E.2d 850,201 Ga. 454 |
| Parties | HOLMAN v. AMERICAN AUTOMOBILE INS. CO. |
| Court | Georgia Supreme Court |
Rehearing Denied Oct. 11, 1946.
Syllabus by the Court.
1. Where an employer maintains on his premises, and in the immediate vicinity of the work, a cafeteria to which he invites, expressly or by fair implication, his employees to lunch, and they accept the invitation by using the facilities offered, the relation of master and servant is not temporarily suspended during the noon hour, and it is the duty of the master to keep and maintain its cafeteria, being a part of its premises, as a reasonably safe place for the employees to eat.
2. Where a servant brings suit against the master for injuries sustained, it is incumbent upon the servant to show not only negligence on the part of the master, but due care on his part: and it must appear that the servant did not know and had not equal means of knowing all that is charged as negligence to the master, and by the exercise of ordinary care could not have known thereof.
3. Where an order sustaining demurrers is general, it will be supported by any sufficient ground.
Mrs Pearl K. Holman brought an action in equity against American Automobile Insurance Company, and in substance alleged: On or about October 9, 1943, she was a civil service employee of the United States of America, holding the position of junior clark typist at the Fort McPherson Post Exchange. While so employed and while in the performance of her customary duties as a typist, during her lunch hour, at a time and place provided by the exchange, she came down the steps to the post exchange cafeteria, and when she stepped from the stairway down upon the floor of the cafeteria, which had been freshly waxed, and without any negligence on her part, she suddenly slipped and fell backward upon the floor thereby sustaining painful, serious, and permanent bodily injuries which she fully detailed. The direct and proximate cause of her injuries was the negligent waxing of the floor of the cafeteria by the post exchange and negligent leaving of an excessive and unnecessary amount of wax on the floor which should have been wiped up and removed by the exchange so as to render the floor a safe place for the use of the employees. Since her injury she has suffered great physical and mental pain and will continue so to suffer as long as she lives. She was fifty-four years of age at the time of the injury, had an expectancy of eighteen years and nine days, and was earning $1440 per annum. The injury received rendered her unable to perform any remunerative work, and was permanent.
The United States of America was a body politic and corporate, capable of entering into a valid legal contract. Fort McPherson Post Exchange was an agency or instrumentality of the United States, operated under the general supervision of the War Department. On March 30, 1943, the defendant insurance company entered into a written contract of insurance with Fort McPherson Post Exchange, and issued to it its policy of insurance covering the operation and maintenance of a general post exchange. Among other things, the insurer obligated itself to answer for the default or miscarriage of the insured in case any liability should arise on account of negligent bodily injury to any of the employees of the exchange. Among the agreements contained in the contract was the following: 'To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon [insured] by law * * *, for damages, including damages for care and loss of services, because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person or persons.' By a rider attached to the policy, dated May 26, 1943, it was further agreed: It was further agreed that the insured would not ask the War Department to authorize such defense. While the petitioner was not a party to the contract of insurance, it was a chose in action of substantial benefit to her and was made by the contracting parties for the benefit of a certain class of persons, namely, the employees of the insured, one of whom was the petitioner. The contract of insurance created in equity a trust relationship between the parties to the contract and the petitioner; and whenever it has been established in a court of law that there is a legal liability against the insured in her favor, she would have a cause of action against the insurer for whatever amount is ascertained to be due her. By the terms and provisions of the insurance contract so entered into, the insurer became in law an indemnifier of the insured, and thereby obligated to pay on behalf of the insured all sums which it should become obligated to pay by reason of the liability imposed upon it by law, including all damages for the negligent bodily injury to petitioner; and the insurer becomes primarily liable when liability against the insured is established, regardless of whether or not there has been any actual loss by payment of damages. The insurer, having agreed in writing to indemnify the insured against loss for the negligent bodily injury inflicted upon the petitioner, is liable primarily to the insured, and to her, should it be established in this court that the insured has negligently injured the petitioner. The defendant is 'answerable' in this case, to the end that equity may be done and to avoid a multiplicity of suits.
On August 9, 1944, she filed suit in the superior court of Fulton County against Fort McPherson Post Exchange for damages because of the serious and permanent injuries which she had sustained by the negligence of the insured. The defendant insurance company, instead of defending the suit in the name of the insured, on its merits, as it was under contract to do, appeared for, and in the name of the insured, and demurred to the suit on the ground, among others, that the petition 'failed to name a legal entity as a party defendant--it appeared therefrom that the Fort McPherson Post Exchange is neither a person, or a partnership, or a corporation, and therefore is not subject to suit.' On oral motion of counsel for the insurer, appearing for the defendant therein, an order was granted dismissing the suit, without passing on other grounds of demurrer. The petition further alleged: That the insurer entered into the contract of indemnity insurance with the insured, dealing with it as a legal entity, but knowing that it was an instrumentality of the United States of America, and received the benefits of the contract, and by its conduct is now in equity estopped to contend that the contract is invalid; the insured is not a legal entity capable of making a valid contract; the insured is not an instrumentality of the United States of America; and that it can not be sued without its consent; and for the additional reason that the insurer agreed to defend in the name of the insured any suit against it alleging injury and seeking to recover damages on account thereof, even of such suit be groundless. To permit such would be a fraud upon the insured and the petitioner, and would result in irreparable injury to her as a beneficiary under the contract. Having successfully contended in the court in her former suit that the insured is not a legal entity, and can not be sued, with or without its consent, which is in conflict with the express terms of its contract, the defendant has made it impracticable, if not impossible, for her to obtain relief in a court of law and she now comes into a court of equity for relief. The defendant having breached its contract of indemnity with the insured has perpetrated a fraud on her and on the insured, and damaged her in the sum of $15,000, and she is without a full, complete, and adequate remedy at law.
Besides for process, the prayers were:
(1) That the defendant be required to specifically perform its part of the indemnity contract by defending this suit on its merits, as it agreed to do, to the end that it may be ascertained whether or not the injury to the plaintiff was due to the negligence of the insured, and if so, what amount of damages should be recovered because of the injury; and that judgment be rendered against the defendant as an indemnifier for the amount so found, together with the sum of $5000 as compensation for mental pain and suffering resulting from the injury.
(2) Or, that judgment be rendered in favor of the petitioner against the defendant for damages on account of the breach of the contract, the amount of such judgment to be such sum as the damages for the injury negligently inflicted on her by the insured should be, together with such amount as may be found as damages for mental pain and suffering. And for such other and further relief as the ends of justice and equity may demand.
The defendant demurrer generally to the petition, and moved that it be dismissed because: (1) The petition sets forth no cause of action. (2) The petition sets forth no valid reasons for equitable relief. (3) It appears from the petition that the legal liability of the insured to pay a definite sum of money to the petitioner for injuries sustained has not been...
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