Saint Paul Fire & Marine Ins. Co. v. Johnson, 20983
| Decision Date | 10 November 1960 |
| Docket Number | No. 20983,20983 |
| Citation | 216 Ga. 437,117 S.E.2d 459 |
| Parties | SAINT PAUL FIRE & MARINE INSURANCE COMPANY v. Turner J. JOHNSON et al. |
| Court | Georgia Supreme Court |
Moise, Post & Gardner, R. Emerson Gardner, J. William Gibson, Atlanta, for plaintiff in error.
Wilkinson & Walker, A. Mims Wilkinson, Jr., Gambrell, Harlan, Russell, Moye & Richardson, James C. Hill, Edward W. Killorin, Atlanta, for defendant in error.
Syllabus Opinion by the Court
This case is here on grant of certiorari to the Court of Appeals in Johnson et al. v. Saint Paul Fire & Marine Ins. Co., 101 Ga.App. 734, 115 S.E.2d 221, where is set out a detailed statement of the allegations of the petition and of the demurrer of Johnson and Gilbert, two of the defendants in the declaratory-judgment action. The Court of Appeals held that the trial judge erred in overruling the general demurrer and the special demurrers to the petition, on the ground of misjoinder of parties, and this is assigned as error in the petition for certiorari. Held: The Court of Appeals held that no justiciable controversy within the meaning of the Declaratory Judgments Act (Code, Ann., § 110-1101(a) ) exists between the insurance company and the two plaintiffs in the action for damages against Solomon, the insured, and Hertz. Gilbert and Johnson are seeking judgments against Solomon in actions which Solomon contends are covered by the policy of insurance issued by the plaintiff insurance company on the Solomon car; and the insurance company denies Solomon's contention because of his failure to comply with conditions of the policy requiring him to give the company notice of the accident and to promptly forward any claims, process, etc., against him. Under the provisions of the policy, which is attached to and made a part of the petition for declaratory judgment, it is provided that if any person obtains a judgment against the insured, which under the terms of the policy the insurance company is required to pay, such person may maintain an action against the insurance company to recover under the policy to the extent of the insurance afforded by the policy.
While the petition does not allege that the plaintiffs have notified the insurance company that they will look to it to pay, to the extent of its policy, any judgments they may recover against the insured Solomon as in Mensinger v. Standard Acc. Ins. Co., 202 Ga. 258, 42 S.E.2d 628, or that the defendant Solomon is insolvent, as in Georgia Cas. & Surety Co. v. Turner, 86 Ga.App. 418, 71 S.E.2d 773, yet the plaintiffs are seeking judgments, and until they procure them they are in no position to make demand for payment upon the insurance company. Any demand or notice prior to judgment would be premature. There has been no disclaimer by the plaintiffs of intention to seek payment of their judgments by the insurance company if they get judgments. This presents not a remote or contingent future possibility of dispute but a real and imminent threat facing the insurance company. In Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826, in determining whether there exists a controversy within the meaning of the Federal Declaratory Judgments Act, 28 U.S.C.A. §§ 2201, 2202, which is similar to ours, the court stated:
Where, as here, the insurance company presents a justiciable controversy with its insured, wherein it seeks determination of the question of...
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Ditmyer v. American Liberty Ins. Co., 43155
...of dispute but a real and imminent threat facing the insurance company.' (Emphasis supplied). St. Paul Fire & Marine Ins. Co. v. Johnson, 216 Ga. 437, 438, 117 S.E.2d 459, 461. It is alleged that the Ditmyers 'will attempt to enforce any judgment obtained by them against Henderson against t......
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LaSalle Nat. Ins. Co. v. Popham
...choice imposed upon it as to justify an adjudication by declaratory judgment.' A similar holding was made in St. Paul Fire & Marine Ins. Co. v. Johnson, 216 Ga. 437, 117 S.E.2d 459, where it was pointed out that 'This presents not a remote or contingent future possibility of dispute but a r......
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...by declaratory judgment.' Nationwide Mut. Ins. Co. v. Peek, 112 Ga.App. 260, 263, 145 S.E.2d 50, 52. See St. Paul Fire Etc., Ins. Co. v. Johnson, 216 Ga. 437, 117 S.E.2d 459; LaSalle Nat. Ins. Co. v. Popham, 125 Ga.App. 724, 188 S.E.2d 870; Ditmyer v. American Liberty Ins. Co., 117 Ga.App. ......
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U-Haul Co. of Ariz. v. Rutland
...the U-Haul defendants could have sought a declaratory judgment against Mayberry on this issue. See St. Paul Fire & Marine Ins. Co. v. Johnson , 216 Ga. 437, 438-439, 117 S.E.2d 459 (1960) ; see also Ga. Cas. & Surety Co. v. Turner , 86 Ga. App. 418, 71 S.E.2d 773 (1952) (permitting declarat......