St. Paul Fire & Marine Ins. Co. v. Fleet Transport Co., 43075
| Decision Date | 06 October 1967 |
| Docket Number | No. 3,No. 43075,43075,3 |
| Citation | 158 S.E.2d 476,116 Ga.App. 606 |
| Parties | ST. PAUL FIRE & MARINE INSURANCE COMPANY v. FLEET TRANSPORT COMPANY, Inc., et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Under the circumstances of this case the various insurance policies which were not attached in their entirety to the petition for declaratory judgment based thereon, but which were by agreement of counsel presented to the court under a stipulation that they should be considered for purposes of demurrer are likewise before this court on appeal.
2. Under Code Ann. § 68-612 it was the legislative intent that the insurer of a common carrier by a contract of insurance filed for this purpose with the Georgia Public Service Commission stand in the shoes of the motor carrier, and be liable in any instance of negligence where the motor carrier is liable.
3. An insurer seeking a declaratory judgment under a policy as to which there is a dispute regarding the insurer's liability and obligation to defend two pending actions against its insured is not entitled to a declaration of rights where it appears that, regardless of its position in regard to the insurance contract which it wishes construed, it is in all events obligated in the pending suits both to defend the actions and pay off any judgments obtained, under another policy of insurance as to which no construction is sought.
St. Paul Fire & Marine Insurance Company has appealed to this court from an order sustaining the general demurrer of the defendant Fleet Transport Company, Inc., its insured, to its petition for declaratory judgment. The petition sought a declaration of rights as to its coverage on a comprehensive liability insurance policy, No. 566LV9641. The petition also named as defendants National Utilities of Cleveland, Inc. and Warren Petroleum Corp., each of which had filed a negligence action against Fleet Transport Company in which this appellant was named co-defendant. It appears from the record before the court on the demurrer hearing that each of these latter actions is based on allegations that Fleet Transport Company is a common carrier licensed by the Georgia Public Service Commission which engages, among other things, in hauling liquid products for its customers; that it contracted separately with National Utilities and Warren Petroleum to haul propane gas which it negligently allowed to become contaminated with ammonia left in the tanks after hauling of this commodity for a previous customer and that the consignor suffered damages due to the corrosion of fittings on storage facilities and the contamination of gas and facilities and also sustained liability to retail customers to whom they sold the propane gas.
The petition for declaratory judgment further sought an injunction against the prosecution of the actions filed by National Utilities and Warren Petroleum; however, the general demurrers of these defendants to this action were sustained; they were dismissed as parties defendant and no exception is taken to these judgments.
Troutman, Sams, Schroder & Lockerman, T. M. Smith, Jr., John D. McLanahan, Atlanta, for appellant.
Reynolds & Reynolds, R. J. Reynolds, Jr., Alston, Miller & Gaines, Lloyd T. Whitaker, Greene, Buckley, DeRieux, Moore & Jones, John D. Jones, Atlanta, for appellees.
1. It must first be noted that the plaintiff has asked for no declaration of rights in regard to its automobile liability insurance policy No. 266JY1019 which also covered the activities of Fleet Transport Company, which the consumers National Utilities and Warren Petroleum had attached to the petitions in their respective cases, and which is apparently the only policy on file with and certified by the Georgia Public Service Commission. In its own petition, St. Paul attached as exhibits copies originally attached thereto, and failed to mention them in its own petition. We arrive at the contents of both policies by way of a stipulation agreed to by the parties and considered by the trial court on the demurrer ruling which amounts to a profert of the contents of both policies, and although the general rule is that on general demurrer to a petition nothing not contained in the pleading and exhibits attached thereto may be considered, there yet exists an exception where profert is made of lengthy documents on which the cause of action is based, and which are in fact considered as though incorporated in the petition by the parties in the trial court. Chicago Building & Mfg. Co. v. Talbotton Creamery, etc., Co., 106 Ga. 84(1), 31 S.E 809; State Highway Dept. v. MacDougald, etc., Co., 102 Ga.App. 254, 257, 115 S.E.2d 863. Here a blank copy of the comprehensive policy on which appellant sought its declaration of rights was attached to the original petition; the automobile policy which was an exhibit attached to each of the tort petitions is referred to within the petitions themselves, and the effect of the stipulation of the contents of the policies is but to amend the petition for demurrer purposes as recited therein by adding them thereto in their entirety.
2. The insurer was of course joined as a party defendant in the actions filed by National Utilities and Warren under the provisions of Code Ann. § 68-612: ...
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