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BRYANT v. CLARK GLASS & MIRROR COMPANY et al.
40687.
Petition for declaratory judgment, etc. Fulton Superior Court. Before Judge Tanksley.
HALL, Judge.
A petition fails to state a cause of action for declaratory judgment when it shows that any rights the plaintiff has have already accrued, and does not show that the plaintiff is in danger of taking some future undirected action which if taken without judicial direction might reasonably jeopardize his rights.
The plaintiff named as defendants in this petition J. O. Clark, Clark Glass & Mirror Co., Inc. (hereinafter called Glass) and J. C. Distributors, Inc. (hereinafter called Distributors), two corporations allegedly owned by Clark; Fred Allen, an officer of the corporations; and Home Life Insurance Company, allegedly medical benefits insurer of Glass employees; and Liberty Mutual Insurance Company, allegedly the workmen's compensation insurer of Glass. The plaintiff alleges that while he was employed by one of the Clark corporations he received an injury; that injury resulted in total and permanent disability, but this did not become apparent until more than a year after he was injured; that the defendants Clark, Allen, Glass, and Distributors concealed from him that he was entitled to workmen's compensation benefits and told him that he was then employed by Distributors and was not entitled to workmen's compensation, and fraudulently recovered for petitioner from Home Life Insurance Company, insurer of Glass employees, some weekly medical insurance benefits, representing to the insurer that the plaintiff's injury was not covered by workmen's compensation. The plaintiff later received another injury in his employment, which aggravated his former injury, and obtained a workmen's compensation award against Distributors on account of the second injury. Bryant v. J. C. Distributors, 108 Ga. App. 401 (133 SE2d 109). After the plaintiff obtained this award Clark "set up an alleged mortgage to try to show that the Clark Company [allegedly another corporation owned by Clark] had a lien on, or owned, all of the assets of J. C. Distributors, Inc." The petition contends that the plaintiff is entitled to recover from some of the defendants for his total and permanent disability, that the benefits he should have received under workmen's compensation are greater than the medical insurance benefits to which he was or is entitled; that he should be considered to be an employee of Clark individually if it is not possible for the court to determine which corporation he was employed by when he was injured; that he is uncertain of his rights in law and equity. The plaintiff prayed that the court declare and define what his rights are and grant a judgment of $10,000 as compensation for his injuries and all other appropriate relief. The plaintiff assigned error on the judgment of the trial court sustaining general demurrers of all the defendants and dismissing the petition, and filed his writ or error in the Supreme Court. The Supreme Court transferred the case to this court on the ground that the petition seeks only legal relief.
The gravamen of this petition seems to be that by false representations the defendants Clark, Allen, Glass, and Distributors have prevented the defendant from enforcing his right to workmen's compensation arising from his first injury, and from enforcing his workmen's compensation award arising from his second injury. Aside from the question whether the plaintiff could succeed in pleading and proving some claim for benefits or cause of action for damages based on these complaints, his present petition does not show a right to the declaratory relief it seeks and the facts pleaded do not contain the elements of any cause of action for damages.
The petition shows that whatever rights the plaintiff has have already accrued. State Hwy. Dept. v. Georgia, F. &c. R. Co., 216 Ga. 547, 548 (117 SE2d 897), and 216 Ga. 812, 813 (120 SE2d 122). It does not show that the plaintiff is in danger of taking some future undirected action, which if taken without judicial direction might reasonably jeopardize his rights. Rowan v. Herring, 214 Ga. 370, 373 (105 SE2d 29); Pinkard v. Mendel, 216 Ga. 487, 490 (117 SE2d 336); Brewton v. McLeod, 216 Ga. 686, 691 (119 SE2d 105).
The Declaratory Judgments Act, Code Ann. 110-1101 et seq., makes no provision for a judgment which is merely advisory. Shippen v. Folsom, 200 Ga. 58, 59 (35 SE2d 915); Liner v. City of Rossville, 212 Ga. 664 (94 SE2d 862); Henderson v. Alverson, 217 Ga. 541, 542 (123 SE2d 721).
The trial court did not err in sustaining the general demurrers and dismissing the petition.
Judgment affirmed. Nichols, P. J., and Russell, J., concur.
Greene, Neely, Buckley & DeRieux, James H. Moore, Troutman, Sams, Schroder & Lockerman, Harold C. McKenzie, Jr., Carpenter & Karp, A. Tate Conyers, contra.
Grace W. Thomas, for plaintiff in error.
DECIDED APRIL 23, 1964.
Friday May 22 21:30 EDT


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