Russell v. Burroughs, 11432.
| Citation | 188 S.E. 451,183 Ga. 361 |
| Decision Date | 13 November 1936 |
| Docket Number | No. 11432.,11432. |
| Parties | RUSSELL et al. v. BURROUGHS. |
| Court | Georgia Supreme Court |
1. A cause of action arising ex contractu and a cause of action arising ex delicto cannot be joined in the same suit.
2. There is nothing in section 7 of the Georgia Motor-Carrier Act approved March 31, 1931, and the same section of the Georgia Common-Carriers Act approved August 27, 1931, which can be construed as authorizing a plaintiff to bring a joint action against an alleged tort-feasor and his insurance carrier or indemnitor, to recover damages for the alleged negligent killing of the plaintiff's servants or agents, so as to modify the general law as stated in the first headnote.
Error from Superior Court, Wilkes County; C. J. Perryman, Judge.
Action by Emma Burroughs against J. Russell and others. Judgment for plaintiff, and defendants bring error.
Reversed.
Earle Norman, of Washington, Ga., for plaintiffs in error.
Lamar C. Rucker, of Athens, and Clement E. Sutton, of Washington, Ga., for defendant in error.
This suit was brought by Mrs. Emma Burroughs jointly against J. Russell doing business as Russell Transfer Company, and the Great American Indemnity Company of New York, alleged to be "the insurance carrier of the defendant, " to recover damages for the killing of the plaintiff's minor daughter, caused by the alleged negligent operation of a truck of the defendant Russell. Russell is alleged to be a motor common carrier, and the indemnity company is alleged to be jointly liable with him under the provisions of the Motor Common-Carrier Act of 1931. A copy of the indemnity or insurance contract is attached to the petition. The defendants demurred separately, each upon the following grounds, among others: That it appears on the face of the petition that different causes of actions have been improperly united, to wit, one arising ex delicto against Russell for the alleged negligent killing, and one arising ex contractu against the indemnity company because of a certain contract made by that company with Russell under and in pursuance of the Motor-Carrier Act of 1931 approved March 31, 1931, and of Motor Common-Carriers Act August 27, 1931; and that such joining of separate and independent causes of action and separate and independent parties defendant is not permitted under the established law of this State; that the contract of indemnity insurance sued on is a contract wholly between Russell and the Great American Indemnity Company, in which the plaintiff has no legal or equitable right or interest and no privity with the parties to said contract, unless and until the plaintiff has obtained a final judgment against Russell in a suit establishing a liability covered by the insurance contract. In the joint demurrer filed by the defendants the petition as amended is demurred to on the ground that Motor-Carrier Act of 1931, approved March 31, 1931 (Ga.L.1931, Ex.Sess., pp. 99-114), and Motor Common-Carriers Act August 27, 1931 (Ga.L.1931, pp. 199-213), are unconstitutional, null, and void, in so far as section 7 of each act undertakes to provide that motor carriers operating within the terms of said act shall give bonds for the benefit of persons who have sustained injuries, or in lieu thereof to give policies of indemnity insurance, which policies shall conform to the provisions relating to bonds, on the ground that the provisions of section 7 in the acts of March 31, 1931, and of August 27, 1931, are not indicated in the titles of these acts, and therefore section 7 of each act is void in the particulars named, because it violates article 3, § 7, par. 8, of the Constitution of this State (Code, § 2-1808). The defendants further demur to the petition, on the ground that if section 7 of either of these acts is to be construed as undertaking to give a right to sue in one action on tort and on contract, it provides a special law for which there is an existing general law, to wit, Code § 3-113, which only allows actions on contract to be brought in one suit, or claims arising in tort to be brought in one action, but not the two actions together; and that a special law which undertakes to permit an action arising ex delicto and one arising ex contractu to be brought in one and the same suit is unconstitutional and void, because in violation of article 1, § 4, par. 1, of the Constitution, as...
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Glenn McClendon Trucking Co., Inc. v. Williams
...against the insurer itself. The "statute, being in derogation of the common law, must be strictly construed...." Russell v. Burroughs, 183 Ga. 361, 364, 188 S.E. 451 (1936). It follows from a consideration of the entirety of OCGA § 46-7-12 that "[c]overage must be proved in these actions; i......