P & J Truck Lines, Inc. v. Canal Ins. Co.

• Citation: 148 Ga.App. 3,251 S.E.2d 72
• Decision Date: 02 November 1978
• Docket Number: No. 56727,56727
• Court: United States Court of Appeals (Georgia)
• Parties: P & J TRUCK LINES, INC. et al. v. CANAL INSURANCE COMPANY.

Page 72

251 S.E.2d 72

148 Ga.App. 3

P & J TRUCK LINES, INC. et al. v. CANAL INSURANCE COMPANY.

No. 56727.

Court of Appeals of Georgia.

Submitted Oct. 10, 1978.

Decided Nov. 2, 1978.

Brown, Katz, Flatau & Hasty, S. Phillip Brown, Macon, for appellants.

Jones, Cork, Miller & Benton, E. Bruce Benton, Macon, for appellee.

BIRDSONG, Judge.

The facts of this case reflect that Paul Thompson together with one Andrew Williams formed P & J Truck Lines, Inc. Following an accident in which a tractor and trailer were destroyed by fire, Thompson, as principal owner, filed a claim against his insurer, Canal Insurance Co. Canal denied liability and returned the premiums paid by Thompson and P & J Truck Lines. Suit was then filed by Thompson and P & J to recover from Canal for the loss incurred and allegedly covered by Canal as insurer. Following trial, judgment was rendered against Canal. Canal appealed the judgment, which was affirmed by this court. Canal Ins. Co. v. P & J Truck Lines, 145 Ga.App. 545, 244 S.E.2d 81. Canal's application for certiorari to the Supreme Court was withdrawn and the judgment of this court became final.

After remittitur, a creditor of P & J Truck Lines notified Canal that payment of the judgment to P & J should not be effected pending resolution of the indebtedness. Canal then filed an equitable petition as a stakeholder, seeking guidance as to whom to pay the proceeds of the insurance. Following answer by P & J, Canal amended its petition seeking to recoup from P & J the insurance premiums refunded to P & J after Canal's denial of liability but before suit was filed against Canal by P & J. The trial court in its order answered Canal's inquiry as to the proper disbursement of the insurance proceeds and directed that P & J refund the previously paid premiums to Canal. The sole enumeration of error deals with that portion of the court's order directing P & J to repay these premiums to Canal. Held :

Appellate courts will labor to retain intact the judgment of a trial court; however, we are also duty-bound to be just before we are generous. Pa. Millers Mut. Ins. Co. v. Heule, 140 Ga.App. 851, 854, 232 S.E.2d 267. In this case, the payment of premiums and subsequent refund to P & J was highly relevant to P & J's right to recover for its insured loss from Canal and was directly involved in the original suit filed by P & J as plaintiff. Ga.L.1966, pp. 609, 625 (Code Ann. § 81A-113(a)) provides: "A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject-matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction." The term "occurrence" or "same transaction" has been given a broad and realistic interpretation by the courts. Thus, the test to be applied in determining whether a counterclaim is compulsory is whether there is a logical relationship between the claim advanced by the plaintiff and the claim asserted by the defendant. 2 Kooman, Federal Civil Practice 158, § 13.10. Any claim that is logically related to another claim that is being sued on is properly the basis for a compulsory...