Johnson v. St. Paul Fire & Marine Ins. Co., 38172

• Citation: 115 S.E.2d 221,101 Ga.App. 734
• Decision Date: 10 May 1960
• Docket Number: No. 38172,No. 1,38172,1
• Court: United States Court of Appeals (Georgia)
• Parties: T. J. JOHNSON et al. v. ST. PAUL FIRE & MARINE INSURANCE COMPANY et al

Page 221

115 S.E.2d 221

101 Ga.App. 734

T. J. JOHNSON et al. v. ST. PAUL FIRE & MARINE INSURANCE COMPANY et al.

No. 38172.

Court of Appeals of Georgia, Division No. 1.

May 10, 1960.

Rehearing Denied June 1, 1960.

Syllabus by the Court

The mere allegation that an injured party has brought an action against an insured tortfeasor does not establish a contentious relationship between the injured party and the insurer sufficient to bestow upon the insurer the basis for a declaratory judgment proceeding and the collateral right to enjoin the injured party from continuing with his action.

The petition shows that during the last week of January, 1958, Turner J. Johnson and Mrs. J. W. Gilbert brought actions against Jessie D. Solomon and The Hertz Corporation for injuries sustained as the result of an accident on September 6, 1957, due to the alleged negligence of Solomon in operating his automobile while in the employment of The Hertz Corporation. The St. Paul Fire & Marine Insurance Company had issued an automobile insurance policy to Solomon on July 2, 1957, in which was the usual provisions for written notice of accident to the insurance company. However, no notice of the accident was given the insurance company until May 7, 1958, nor did the insurance company have any notice that an action had been commenced against Solomon. On July 28, 1958, the insured informed the insurance company that he claimed protection under the policy and that he would hold the insurance company liable for any amounts recovered against him and the defense of these actions was at that time tendered to the insurance company.

The St. Paul Fire & Marine Insurance Company thereafter on April 14, 1959, while the actions for injuries were pending against its insured and The Hertz Corporation, petitioned the superior court for declaratory relief, contending that since proper notice was not given the insurance company it was relieved of its obligation under the insurance policy with the insured, and that the status between the insurance company and the insured is doubtful and uncertain and it is doubtful as to whether it should accept the tender of the defense to the cases. The insurance company named Turner J. Johnson, Mrs. J. W. Gilbert, the injured parties, Jessie D. Solomon, the insured, and The Hertz Corporation as defendants in this petition for declaratory judgment and asked that a declaratory judgment be rendered adjudging whether or not the insurance company was relieved of its obligation to defend Solomon under the policy of insurance and requested that an injunction be issued staying the suits of Johnson and Gilbert and restraining them from prosecuting them further until these questions be determined in the declaratory proceeding. The Fulton Superior Court Judge, on the same day the petition was filed by the St. Paul Fire & Marine Insurance Company, restrained the plaintiffs Johnson and Gilbert and the defendants Solomon and The Hertz Corporation from taking any further action in the damage suits until further order of the court.

Johnson and Gilbert, the injured parties, filed their demurrers to the insurance company's petition for declaratory relief. These demurrers contend, (1) that the petition sets forth no cause of action against these defendants; (2) that the petition shows on its face that the insurance company is not entitled to the relief prayed; (3) that the petition sets forth no cause of action for the relief prayed; and (4) that the petition shows on its face that the defendant is not a proper party to this proceeding and that there is a misjoinder of parties defendant as to Johnson and Gilbert. These demurrers were passed on in November of 1959 and were overruled by the superior court judge. To this order overruling these demurrers Johnson and Gilbert excepted and assigned error, thus bringing the matter before this court.

Wilkinson & Walker, A. Mims Wilkinson, Jr., F. W. Scroggins, Atlanta, for plaintiffs in error.

Moise, Post & Gardner, R. Emerson Gardner, J. William Gibson, Gambrell, Harlan, Russell, Moye & Richardson, James C. Hill, Edward W. Killorin, Atlanta, for defendants in error.

BELL, Judge.

The question for determination in this case is whether a plaintiff in a damage suit for personal injuries can be shanghaied into a declaratory judgment action because of a justiciable dispute with respect to an insurance policy between a defendant in the damage suit and the defendant's insurance carrier.

The issue presented is of extreme importance because if such declaratory relief be granted, it will be an extension of the sphere of operation of the declaratory judgment law. Such an extension may permit concomitant evils that may open the function of declaratory judgments to abuse and so authorize its use on occasions to perpetrate travesties on true justice. For the purposes of this case, it is taken as settled that there is a controversy between Solomon, the insured, and his insurance company as to whether or not Solomon's insurance policy was still effective after he had delayed so long in giving his insurer proper notice of the claim against him. The insurance company's petition shows that Solomon had been sued on January 24, 1958 and on January 28, 1958 by Johnson and Gilbert, respectively, on causes allegedly originating in an accident which occurred on September 6, 1957; that to these suits Solomon filed answers and demurrers; that several hearings on demurrers were had; that a pre-trial order was passed in each case on March 4, 1959; that Solomon's deposition was taken on March 8, 1959; that no summons or process in either suit was forwarded to the insurance company by Solomon nor was any notice of any hearings or of the taking of Solomon's deposition given the insurer; that Solomon employed his own counsel without the knowledge and consent of the insurer; that no notice of the accident was given insurer until about May 7, 1958; and the defense of the cases were not tendered to the insurer until about July 28, 1958. From the facts alleged it is quite possible that the insurance company was relieved of its responsibility under the policy because of the indicated delays and the actions taken by Solomon. However, that issue is not raised here. The only issue which this court may consider now is whether or not Johnson and Gilbert, those injured as the result of the alleged negligence of the insured, can be properly forced into this dispute and made proper parties against their will in the declaratory judgment action. For any party to be made a defendant in a proceeding asking for declaratory relief under the Declaratory Judgment Act, it is essential that the basis for the declaratory relief sought against each party be distinctly alleged and shown. The Declaratory Judgment Act of Georgia, Ga.L.1945, p. 137 as amended (see Code, Ann., § 110-1101 et seq.) sets out the grounds for declaratory relief. The law provides that there must be an actual controversy in order for the courts to declare rights, and further that other legal relations of any interested party may be declared in cases where it appears to the court that the ends of justice require that such a declaration should be made. This petition does not show any controversy, and there is utterly no foundation alleged upon which an actual dispute can be based between the insurance company and the parties injured by the asserted negligence of the insured. Although it is clear that there is no actual controversy between ...