Travelers Indem. Co. v. Hood

• Decision Date: 02 December 1964
• Docket Number: 41025,No. 2,Nos. 41024,s. 41024,2
• Citation: 140 S.E.2d 68,110 Ga.App. 855
• Parties: , 20 A.L.R.3d 314 TRAVELERS INDEMNITY COMPANY v. Ola HOOD et al. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Ola HOOD et al
• Court: Georgia Court of Appeals

Page 68

140 S.E.2d 68

110 Ga.App. 855, 20 A.L.R.3d 314

TRAVELERS INDEMNITY COMPANY v. Ola HOOD et al.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Ola HOOD et al.

Nos. 41024, 41025.

Court of Appeals of Georgia, Division No. 2.

Dec. 2, 1964.

Rehearing Denied Dec. 17, 1964.

Syllabus by the Court

1. It is not against public policy for a contract for automobile liability insurance to cover liability of the insured arising out of wilful and wanton misconduct in unlawfully racing automobiles on a public highway.

2. A petition paying for declaratory judgment which shows that the rights of the parties have already accrued and alleges no facts or circumstances showing that an adjudication of the plaintiff's rights is necessary to relieve him of the risk of taking any future undirected action incident to his rights, which action without judicial direction might reasonably jeopardize his interest, fails to state a cause of action for declaratory judgment.

3. A petition alleging that two insurers are jointly and severally indebted on their separate automobile insurance policies for a judgment against an insured who is covered under one of the policies as a named insured and covered under the other policy as the user of a non-owned automobile, is subject to special demurrer on the ground of misjoinder in one action of claims based on two separate contracts against two separate defendants.

The plaintiff sued the defendants as insurers of Larry P. White praying for recovery of $10,000.00, the amount of a judgment that she had obtained against White, Latimer, and others in an action for the death of her husband. A decision of this court in that action is reported in Hood v. Evans, 106 Ga.App. 360, 126 S.E.2d 898. The plaintiff's husband was killed in a collision with an automobile driven by Latimer and at the time allegedly being used and occupied in a joint enterprise by White and Latimer. This automobile was covered by a liability insurance policy issued to Latimer's mother by the defendant Travelers Indemnity Company (hereinafter called Travelers). This policy allegedly also covered White as a person using the automobile. White's liability arising out of the use of the Latimer automobile allegedly was insured also under the terms of an automobile liability policy of State Farm Mutual Automobile Insurance Company (hereinafter called State Farm) in which White was a named insured. Before the judgment against these insureds Travelers negotiated settlement with the plaintiff for $9,200 on behalf of Latimer. The petition alleged that each of the defendant insurers contended that the other was liable for the judgment against White and neither had paid any amount thereon; that Travelers contended its liability, if any, could be for no more than $800, the difference between the amount of its settlement on behalf of Latimer and the limits of its liability under the policy; and State Farm contended that White's liability was not covered by its policy and, if covered at all, only in excess of any coverage by the Travelers policy.

After demurrers were filed the plaintiff amended her petition and added a prayer that the court declare the rights of the parties as provided by the Declaratory Judgment Act (Code Ann. § 110-1101) and declare the respective legal obligations of the defendants to terminate the controversy and remove uncertainty as to the legal responsibilities of each of the defendants. The trial court granted the plaintiff's motion for summary judgment, ordering that the plaintiff recover of Travelers $800 plus interest and recover of State Farm $9,200 plus interest. Each of the defendants assigns error on this judgment and on antecedent judgments overruling its demurrers. Travelers assigns error also on judgments denying its motion to dismiss and order of jurisdiction and its motion to strike the amendment to the plaintiff's petition.

Greene, Neely, Buckley & DeRieux, Burt DeRieux, James A. Eichelberger, Atlanta, for Travelers Indemnity Co.

Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., Atlanta, for State Farm Mut. Auto. Ins. Co.

Robert E. Flournoy, Jr., Marietta, for defendant in error.

HALL, Judge.

1. The defendants argue in support of their general demurrers that their policies do not cover liability for the conduct upon which the judgment against their insured was based, because it is contrary to public policy to indemnify a person against his wilful and wanton misconduct. The plaintiff's judgment resulted from a negligence action in which the insured and others were charged with engaging in an automobile race on the highway. '[R]acing on a public highway contrary to the laws of the State' has been described by this court as wilful and wanton misconduct. Roberts v. King, 102, Ga.App. 518, 523, 116 S.E.2d 885, 888. It is an intentional act in reckless disregard of the safety of others, and is prohibited by the criminal as well as the civil law. The fallacy of the defendants' argument lies in the distinction between intentional act and intentional injury. The State Farm policy insured against liability for bodily injury 'caused by accident and arising out of the ownership, maintenance or use' of the automobile. The Travelers policy insured payment of 'all sums which the insured shall become legally obligated to pay as damages because of * * * bodily injury * * * arising out of the ownership maintenance or use of the owned automobile * * *' excluding 'bodily injury caused intentionally by or at the direction of the insured.'

Courts and authoritative writers have considered it against public policy to insure against injuries intentionally inflicted. 'Accident' and 'intention' are converse terms. An accident refers to an unexpected happening rather than one occurring through intention or design. Hence, injuries 'caused by accident' as used in an insurance contract would include injuries caused without the actor's intent or design to injure and would not include injuries intentionally inflicted. 'Accident' is a more comprehensive term than negligence, although negligence is included in it. And the fact that an injury for the purposes of criminal or tort law may be held constructively intentional does not remove it from the category of injury 'caused by accident' in the terms of an insurance contract. Sheehan v. Goriansky, 321 Mass. 200, 72 N.E.2d 538, 173 A.L.R. 497; 7...