Pennsylvania Threshermen & Farmer's Mut. Cas. Ins. Co. v. Wilkins, 39457

• Decision Date: 05 September 1962
• Docket Number: No. 39457,No. 1,39457,1
• Citation: 127 S.E.2d 693,106 Ga.App. 570
• Parties: PENNSYLVANIA THRESHERMEN & FARMER'S MUTUAL CASUALTY INSURANCE COMPANY v. H. C. WILKINS et al. . Division
• Court: Georgia Court of Appeals

Page 693

127 S.E.2d 693

106 Ga.App. 570

PENNSYLVANIA THRESHERMEN & FARMER'S MUTUAL CASUALTY INSURANCE COMPANY v. H. C. WILKINS et al.

No. 39457.

Court of Appeals of Georgia. Division No. 1.

Sept. 5, 1962.

Rehearing Denied Sept. 21, 1962.

Syllabus by the Court

The petition of the insurer did not state a cause of action for declaratory relief where, under the allegations, there appeared no basis whatever for the claim of the defendant driver that he was entitled to the rights of an insured under a policy issued to third persons.

This was an action brought for a declaratory judgment to determine the rights and liabilities of the several parties defendant under a policy of liability insurance issued by the plaintiff. The defendants Wilkins and Higgins were by endorsement the named insureds in the policy. The defendant Carlan was the driver of a tractor and semitrailer which were involved in a collision with an automobile operated by defendant Wood, and a truck owned and operated by defendant Vaughn Lumber Co., which was being driven by defendant Washington's deceased husband.

The policy of insurance afforded liability and other coverage for four tractors and four trailers including the semi-trailer which was being pulled by the tractor defendant Carlan was driving and which was involved in the three-way collision. The petition alleged that the defendants Wood, Washington and Vaughn Lumber Co. claimed that defendant Carlan is liable to them for damages by reason of injuries and damages received as a result of his alleged negligence at the time of the collision; that they contend the policy issued by the plaintiff to the defendants Wilkins and Higgins imposes the duty upon the plaintiff to defend these claims against the defendant Carlan and to pay any judgments Wood, Washington and Vaughn Lumber Co. may obtain against Carlan; that defendant Carlan claims he is afforded bodily injury liability and property damage liability coverage and $250 deductible collision coverage under the policy and that the plaintiff was by the terms of the policy under a duty to defend the claims being pressed against him by defendants Wood, Washington and Vaughn Lumber Co.; petitioner alleges that defendant Carlan was not an insured under the policy, that the tractor he was driving was not insured under any insurance policy issued by the plaintiff and that the plaintiff's insureds, defendants Higgins and Wilkins, had no insurable interest in the semi-trailer being towed by the tractor driven by Carlan involved in the collision; that defendants Wood, Washington and Vaughn Lumber Co. are threatening to file suits against defendant Carlan for damages arising out of the collision; that plaintiff contends that because defendants Higgins and Wilkins had transferred any ownership interest in any vehicle involved in the collision to Carlan, and because Carlan was not insured under the policy and because of an exclusion in the policy from coverage any trailer covered by the policy used with any automobile owned or hired by the insured and not covered by like insurance, this exclusion was applicable, and the plaintiff was not under any duty to defend any of the claims being pressed against defendant Carlan and under no duty to pay any judgments which might be rendered in any suits growing out of these claims by any of the defendants. The petition thus sought a declaration of the rights and duties of the parties to the action under and by virtue of the policy issued by the plaintiff to the defendants Higgins and Wilkins. Defendants Vaughn Lumber Co. and Fanny M. Washington filed renewed and additional demurrers to the amended petition which were sustained and the petition dismissed, to which ruling the plaintiff accepted.

Greene, Neely, Buckley & DeRieux, Burt DeRieux; Gambrell, Harlan, Russell, Moye & Richardson, Atlanta, for plaintiff in error.

E. C. Harvey, Jr., Decatur, Sosebee & Clarke, Forsyth, H. A. Stephens, Jr., Smith, Field, Ringel, Martin & Carr, Atlanta, for defendants in error.

BELL, Judge.

The sole question raised by this bill of exceptions is: Does the plaintiff's petition, as twice amended, state a justiciable controversy authorizing the granting of a declaratory judgment?

As stated in a leading opinion: 'The difference between an abstract question and a 'controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.' Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826. See also St. Paul Fire & Marine Ins. Co. v. Johnson, 216 Ga. 437, 117 S.E.2d 459; s. c. Johnson v. St. Paul Fire & Marine Ins. Co., 101 Ga.App. 734, 115 S.E.2d 221.

The defendants Vaughn Lumber Co. and Fanny M. Washington contend that the cases relied upon by the plaintiff to show that a cause of action in stated for declaratory relief are all...