U.S. Cas. Co. v. Georgia Southern & Florida Ry. Co.

• Decision Date: 22 January 1957
• Docket Number: Nos. 1,Nos. 36439,36440,2,s. 36439,s. 1
• Citation: 97 S.E.2d 185,95 Ga.App. 100
• Court: Georgia Court of Appeals
• Parties: UNITED STATES CASUALTY COMPANY v. GEORGIA SOUTHERN & FLORIDA RAILWAY COMPANY et al. GEORGIA SOUTHERN & FLORIDA RAILWAY COMPANY v. UNITED STATES CASUALTY COMPANY et al

Page 185

97 S.E.2d 185

95 Ga.App. 100

UNITED STATES CASUALTY COMPANY v. GEORGIA SOUTHERN & FLORIDA RAILWAY COMPANY et al.

GEORGIA SOUTHERN & FLORIDA RAILWAY COMPANY v. UNITED STATES CASUALTY COMPANY et al.

Nos. 36439, 36440.

Court of Appeals of Georgia, Division Nos. 1, 2.

Jan. 22, 1957.

Rehearing Denied Feb. 11, 1957.

Syllabus by the Court

In the present case where the allegations of the petition disclose that the rights of the parties have already accrued, that no facts or circumstances neccessitate a determination of the dispute in order to protect the parties from taking some future action, which if taken without a declaration of their rights might reasonably jeopardize their interests, and where it does not appear that they do not have an adequate remedy at law or in equity, the trial court erred in overruling the general demurrer to the plaintiff's petition seeking a declaratory judgment.

The writs of error in the present action between the plaintiff, Georgia Southern & Florida Railway Company, and the defendants, United States Casualty Company, H. M. Pafford, Jr., and Mrs. Charlie McKinnon, were transferred to this court by the Supreme Court. See United States Casualty Co. v. Georgia Southern & F. Ry. Co. (Ga. Southern & F. Ry. Co. v. United States Casualty Co.), 212 Ga. 569, 94 S.E.2d 422.

The plaintiff's petition alleged substantially the following: Charlie McKinnon, an employee of H. M. Pafford, Jr., was instantly killed when a dirt moving machine being operated by him collided with a train owned and being operated by the railroad. At the time that McKinnon was killed he was engaged in the construction of an overhead bridge which Pafford had contracted to construct, for the State of Georgia, over a main-line track of the railroad. Prior to the time when the contract between the State and Pafford was entered into, agreements were entered into between the State and the railroad under which the contractor, who was to build the overhead bridge, was to furnish certain bonds and insurance policies to the railroad (these policies were issued by the United States Casualty Co.) which were intended to relieve the railroad from liability in certain events. After Charlie McKinnon was killed, an agreement as to workmen's compensation was entered into between Pafford and Mrs. Charlie McKinnon whereby certain workmen's compensation benefits were to be paid to Mrs. Charlie McKinnon as the result of the death of her husband. The name of the United States Casualty Company was mentioned in such agreement which was approved by the State Board of Workmen's Compensation. Later Mrs. Charlie McKinnon filed an action against the railroad in which she sought to recover for the death of her husband and in which it was alleged that the death of her husband was caused by the negligence of one of the railroad's employees. The insurance company refused to defend this action brought against the railroad by Mrs. McKinnon contending that the action was not covered by any policy issued by it.

The railroad brought the present action in which it sought declaratory judgments against the defendants which would have required the insurance company to defend the action filed against the plaintiff by Mrs. McKinnon, restrained Mrs. McKinnon from prosecuting her action against the plaintiff until the present case is decided, restrained the insurance company from obtaining any money from the plaintiff as the result of having paid Mrs. McKinnon any money under the agreement approved by the State Board of Workmen's Compensation, restrained the defendant Pafford from seeking to recover any judgment from the plaintiff as the result of any of his machinery having been demaged when the plaintiff's train collided with the dirt moving machine being operated by Charlie McKinnon, and required the defendant Pafford to answer any judgment obtained against the plaintiff by Mrs. McKinnon as the result of her husband's death in the event the insurance company was not required to do so.

The trial court overruled the general demurrer filed by the defendant United States Casualty Company which alleged that the petition did not set forth a cause of action for a declaratory judgment. Later, after additional pleas, requests for admissions, etc., had been filed, the trial court rendered a declaratory judgment finding for the railroad as to certain of its prayers and against it on other of its prayers.

The insurance company, in its bill of exceptions, excepts to the portions of the trial court's judgments adverse to it while the railroad, in its cross bill of exceptions, excepts to the portions of the trial court's judgment adverse to it.

Bloch, Hall, Groover & Hawkins, Macon, Blalock & Blalock, Waycross, Gibson & Maddox, Douglas, R. D. Smith, Tifton, for Georgia So. & Fla. Ry. Co.

Memory, Barnes & Memory, Blackshear, Martin, Snow & Grant, Macon, Blalock & Blalock, Waycross, Gibson & Maddox, Douglas, R. D. Smith, Tifton, for U. S. Casualty Co. et al.

NICHOLS, Judge.

"While our declaratory-judgment statute itself says that it should be liberally construed, it manifestly was never intended to be applicable to every occasion or question arising from any justiciable controversy, since the statute does not take the place of existing remedies. It therefore follows that where there exists a remedy, either in law or in equity, a petition for declaratory judgment will lie only when there be some fact or circumstances which necessitate a determination of disputes, not merely for the purpose of enforcing accrued rights, but in order to guide and protect the petitioner from uncertainty...