Pennsylvania Thresherman & Farmers Mut. Cas. Ins. Co. v. Gardner

• Decision Date: 07 March 1963
• Docket Number: No. 3,No. 39913,39913,3
• Parties: PENNSYLVANIA THRESHERMAN & FARMERS MUTUAL CASUALTY INSURANCE COMPANY v. Grace S. GARDNER et al
• Court: Georgia Court of Appeals

Page 507

130 S.E.2d 507

107 Ga.App. 472

PENNSYLVANIA THRESHERMAN & FARMERS MUTUAL CASUALTY INSURANCE COMPANY v. Grace S. GARDNER et al.

No. 39913.

Court of Appeals of Georgia, Division No. 3.

March 7, 1963.

In an action for declaratory judgment, petitioner sought a declaration relieving it of any obligation as insurer of an automobile involved in a collision and restraint of a suit pending in connection with the collision until final determination of its action for declaratory relief. As an insurer, the plaintiff alleged that it had coverage of other automobiles owned by defendant who contends that she also asked plaintiff's agent to insure the automobile which was subsequently involved in a collision, but that no written policy or endorsement certificate was issued and no premiums were paid to the agent who denied any knowledge of such request. The petition recites a course of dealings with the agent for some ten years prior to the date of the accident during which time he had personally paid insurance premiums for defendant and obtained reimbursement in either cash or merchandise at the defendant's store. However, it is stated that no premium was charged for insurance on the automobile involved and that the agent denied 'ever intending to issue an Endorsement Certificate as requested.' The petition states that plaintiff investigated the facts surrounding the collision of defendant's automobile and then informed defendant that it denied any coverage of insurance as pertaining to the operation of the automobile involved. The petition recites the filing of a suit against the defendant for recovery of personal and property damages arising from the collision, and the record shows that the defendant therein has filed her answer to the suit. The plaintiff also obtained an extended time for filing defensive pleadings in the damage suit and filed its petition for declaratory judgment seeking to have further proceedings in that action enjoined until determination of its liability. The defendant generally demurred to the petition seeking declaratory relief and her demurrer was sustained by the trial court. The exception in this court is to that judgment.

Sharpe & Sharpe, T. Malone Sharpe, T. Ross Sharpe, Lyons, for plaintiff in error.

Perry Brannen, Savannah, Allen & Edenfield, Statesboro, for defendant in error.

Syllabus Opinion by the Court

CARLISLE, Presiding Judge

1. Where there exists a controversy within the meaning of the Declaratory Judgment Act (Code Ann. § 110-1101), parties to a policy of automobile liability insurance may invoke this remedy for determination of controversies arising from the construction and operation of the policy. St. Paul Fire & Marine Ins. Co. v. Johnson, 216 Ga. 437, 117 S.E.2d 459; Mensinger v. Standard Accident Ins. Co., 202 Ga. 258, 42 S.E.2d 628. See also, Pennsylvania Threshermen & Ins. Co. v. Wilkins, 106 Ga.App. 570, 573, 127 S.E.2d 693, and cases cited.

2. The question of whether an insurance company is required to defend an insured in a damage suit may be a proper subject for declaratory judgment where the facts alleged present an actual or justiciable controversy for determination of the courts, St. Paul Fire & Marine Ins. Co. v. Johnson, 216 Ga. 437, (supra), and cases cited, or when the ends of justice demand that such relief be given. Calvary Independent Baptist Church v. City of Rome, 208 Ga. 312, 66 S.E.2d 726. See also, 26 C.J.S. Declaratory Judgments §§ 66 and 67, page 169.

3. However, it is encumbent upon the party seeking such declaration to allege facts sufficient to show the existence of a controversy within the meaning of this statute, and a petition which does not set forth an actual controversy between the parties may be subject to demurrer. Darnell v. Tate, 206 Ga. 576, 58 S.E.2d 160; Moore v. Young, 101 Ga.App. 553, 114 S.E.2d 446. See also Georgia Marble Co. v. Tucker, 202 Ga. 390, 43 S.E.2d 245; Brown v. Cobb County, 212 Ga. 172, 91 S.E.2d 516; Lewis v. Lewis, 212 Ga. 168, 91 S.E.2d 336.

4. When the petition contains only conclusions of the pleader that there does exist a substantial controversy for determination, and no facts are alleged upon which the controversy can be predicated, the petition fails to state a justiciable dispute or controversy which would authorize the court to grant any relief under Section 1 of the Declaratory Judgments Act (Ga.L.1945, p. 137; Code Ann. § 110-1101, subsection (a)). Moore v. Young, 101 Ga.App. 553, 114 S.E.2d 446; Georgia Marble Co. v. Tucker, 202 Ga. 390, 43 S.E.2d 245; Darnell v. Tate, 206 Ga. 576, 58 S.E.2d 160.

5. Although the petition here concludes that there is a substantial controversy between the parties as to automobile liability insurance coverage on an automobile involved in a collision, the petition alleges that no insurance policy was issued, that no premium was charged or paid for such coverage, and the petition fails to set forth facts showing a controversy as to the existence of a contract from which insurance coverage would be derived. Thus, when it was encumbent upon the pleader to allege facts showing an actual controversy of real and imminent threat upon which to predicate the declaratory relief sought, Darnell v. Tate, 206 Ga. 576, 58 S.E.2d 160; Moore v. Young, 101 Ga.App. 553, 114 S.E.2d 446; Georgia Marble Co. v. Tucker, 202 Ga. 390, 43 S.E.2d 245, the allegations of its petition expressly negate the possibility of any substantial controversy, between the insurer and an insured, arising from the construction and operation of a policy for automobile liability coverage. See, Georgia Casualty & Surety Co. v. Hardrick, 211 Ga. 709, 88 S.E.2d 394, the cases cited; Peninsular Life Ins. Co. v. Downard, 99 Ga.App. 509, 109 S.E.2d 279; Code Ann., Ch. 56-24. 'A declaratory judgment cannot be obtained where there is no room for a reasonable question as to the rights of the parties.' 26 C.J.S. Declaratory Judgments § 25; Brown v. Lawrence, 204 Ga. 788, 51 S.E.2d 651; Pennsylvania Threshermen & Farmers Mut. Cas. Ins. Co. v. Wilkins, 106 Ga.App. 570, 127 S.E.2d 693. And plaintiff's petition was subject to general demurrer in that it failed to...