Opinion
42158.
ARGUED JULY 8, 1966.
DECIDED SEPTEMBER 16, 1966.
Action on insurance policy. Pierce Superior Court. Before Judge Hodges.
Carroll Russell, for appellant.
Memory, Barnes Memory, S. F. Memory, Jr., for appellee.
In this action for declaratory judgment, plaintiff, the alleged insured, sought to have determined the question whether the defendant insurer was obligated, upon an automobile liability insurance policy, to defend plaintiff in a suit by a third party to recover damages resulting from an automobile collision. Plaintiff took this appeal from the judgment of the trial court sustaining all the grounds of defendant's general demurrer to plaintiff's petition.
1. "The test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff is entitled to the declaration of rights in accordance with his theory, but whether he is entitled to a declaration of rights at all, so that even if the plaintiff is on the wrong side of the controversy, if he states the existence of a controversy which should be settled, he states a cause of suit for a declaratory judgment." Nationwide Mut. Ins. Co. v. Peek, 112 Ga. App. 260, 262 ( 145 S.E.2d 50) and citations. Thus, the plaintiff may be entitled to prevail on general demurrer even if as a matter of law he could not prevail upon a trial of the issues. The elaborated second, third, fourth and fifth grounds of general demurrer raised only the question whether the plaintiff was entitled to a declaration of rights in accordance with his theory and did not reach the question whether the petition stated a cause of action for declaratory relief. The trial court erred in sustaining these grounds of demurrer since the effect of the judgment would be to declare the rights of the parties, which the court was not authorized to do on demurrer.
2. The first ground of demurrer, objecting broadly that "The allegations of the petition as a whole . . . fail to allege facts which entitle petitioner to a declaratory judgment or any other relief," aptly raised the question whether plaintiff alleged a justifiable controversy, and decision on this ground of demurrer is controlled, adversely to plaintiff, by U.S. Cas. Co. v. Georgia c. R. Co., 95 Ga. App. 100, 103 ( 97 S.E.2d 185).
The judgment of the trial court sustaining defendant's general demurrer and dismissing plaintiff's petition is affirmed on ground 1 with directions to the trial court to modify the judgment so as to exclude the sustaining of grounds 2, 3, 4 and 5 of the defendant's general demurrer.
Judgment affirmed with direction. Jordan and Eberhardt, JJ., concur.