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 necessitate 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 &c. Ry. 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 damaged 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.
The petition in the present action seeks an adjudication that the action brought against the railroad by Mrs. McKinnon is within the coverage of a policy of insurance issued by the defendant insurance company, and in addition thereto seeks to have decided the rights of the parties under various contracts or agreements entered into as the result of the State having had an overhead bridge built over a main-line track of the railroad.
The Supreme Court, in its decision transferring the writs of error in the present case to this court, held that the allegation in the petition relating to a multiplicity of suits was a mere conclusion of the pleader. United States Casualty Co. v. Ga. &c. Ry. Co., 212 Ga. 569
(94 S. E. 2d 422). Therefore, that question is not presented for decision, even assuming that it could be presented to this court.
This is not a case where an insurance company is seeking a declaratory judgment to determine if it is liable on a policy before it spends money to defend an action brought against its alleged insured. See Georgia Casualty & Surety Co. v. Turner, 86 Ga. App. 418
(71 S. E. 2d 773), and Griffin v. Hardware Mutual Ins. Co., 93 Ga. App. 801
(92 S. E. 2d 871). In that type of case the insurance company is faced with the problem of spending money to defend an action which it could not recover if it were later found to be not liable under the policy issued by it. However, such is not the case here where the insured is seeking the declaratory judgment, for if the insured defends the action, and certainly the insured wants any action against it defended, and the insurer is not liable the insured has lost nothing for it would have only spent money to defend an action brought against it which was not covered by the insurance policy, and, if the insurer is liable, the insured can recover any sums spent by it to defend the action, and, if a judgment is rendered against it, the amount of the judgment up to the limits of the policy in a breach of contract suit against the insurer.
All the rights of the parties under the insurance contract and the contracts or agreements were fixed at the time of the collision between the train and the dirt-moving machine, and the plaintiff is not in a position of having to take some action which, if taken without the aid of a declaratory judgment, might jeopardize its position. Accordingly, the trial court erred in overruling the general demurrer filed by the insurance company and all further proceedings were nugatory.
That portion of the decision of this court in the case of Drake v. General Accident &c. Corp., 88 Ga. App. 408
, 413 (77 S. E. 2d 71), which is in conflict with what has been held above, is in conflict wish the full bench decisions of the Supreme Court, supra, and cannot be followed.
The defendant insurance company's general demurrer went to the "very vitals of the plaintiff's case" and necessarily inured to the benefit of the other defendants. See Young v. Koger, 94 Ga. App. 524
, 528 (95 S. E. 2d 385), and cases cited. Inasmuch as such general demurrer should have been sustained and the petition for declaratory judgment dismissed, the further proceedings were nugatory, and the other assignments of error need not be passed upon by this court.
Judgment reversed in case No. 36439; case No. 36440 dismissed. Gardner, P. J., Carlisle and Quillian, JJ., concur. Felton, C. J., and Townsend, J., dissent.