Summary
In Central of Georgia Ry. Co. v. Southern Clays, Inc., 94 Ga. App. 377 (94 S.E.2d 625) it was stated that a defendant properly vouched into a law action a third party and the insurer of that party, but it appeared in that case that the insurer had assumed the entire defense of the third party's interest under its contract of insurance, and the two were, for purposes of the decision, considered as occupying a single position in the matter.
Summary of this case from Blankenship v. SmartOpinion
36363.
DECIDED SEPTEMBER 21, 1956.
Petition for declaratory judgment. Before Judge Long. Bibb Superior Court. July 9, 1956.
Harris, Russell, Weaver Watkins, for plaintiff in error.
M. Cook Barwick, Benning M. Grice, contra.
In order that a cause of action for declaratory judgment be set forth, where there is an existing remedy at law, it must appear that such remedy is not adequate because of facts and circumstances which necessitate a determination of disputes, not merely for the purpose of enforcing accrued rights, but to guide and protect the petitioner from insecurity with respect to the propriety of some future act or conduct which is properly incident to his alleged rights, and which future action without such direction might reasonably jeopardize his interest. No such facts are alleged here. The petitioner, a defendant in an action for damages, seeks to have its rights under an indemnity contract with third parties construed in advance of its trial of the damage suit but does not seek any judgment of the court as to the construction or validity of the indemnity contract but only an adjudication as to whether the facts alleged by the plaintiff in the damage suit (which may or may not be proved on the trial of that case) are sufficient to bring the indemnity agreement into operation. Since the liability of the indemnitor is in any event secondary and does not come into existence until liability is established against the petitioner, and since under the contract the indemnitor in no event assumes the burden of defending pending suits, the obligation of the petitioner here to defend the damage suit is the same whether or not it will ultimately be able to collect a judgment rendered against it from the indemnitor. Having vouched the indemnitor and its insurer into court in the damage action, the petitioner has already ascertained that in the event liability is assessed against it the indemnitor will be concluded by the amount thereof. No other special facts are alleged entitling the petitioner to a declaratory judgment, and the trial court did not err in dismissing the petition seeking this relief.
DECIDED SEPTEMBER 21, 1956.
Central of Georgia Railway Company filed an action for declaratory judgment in the Superior Court of Bibb County against Southern Clays, Inc., Savannah Kaolin Company, Bituminous Casualty Corporation and Roscoe S. Pagett, which alleged in substance as follows: Bituminous Casualty Corporation is the insurer of Southern Clays, a tenant of Savannah Kaolin Company, as to an indemnity agreement contained in a lease between Southern Clays and the railroad under which agreement the railroad constructed a spur track for the use of the company and used it in loading company products. One paragraph of the lease agreement reads as follows: "The tenant and Clay Company also agree to indemnity and hold harmless the railway for loss, damage or injury from any act or omission of the tenant and Clay Company, their employees or agents, to the person or property of the parties hereto and their employees and to the person or property of any other person or corporation while on or about said track extension and if any claim or liability other than from fire shall arise from the joint or concurring negligence of two or more parties hereto, it shall be borne by them equally."
Pagett, an employee of the railroad, while engaged in supervising the loading of Southern Clays products onto the spur track constructed in accordance with the agreement on the property of Southern Clays was injured and thereafter filed an action in the City Court of Macon for $81,904 damages against the railroad under the Federal Employers' Liability Act, alleging as grounds of negligence that the railroad did not afford him a safe place to work, in that the ground was covered with clay products, mud and greasy steam fluid coming from the buildings used by Southern Clays, Inc., and visibility was poor because of clay particles in the air.
The railroad in this petition alleges that, since all of the acts of negligence set forth in Pagett's damage suit against it are the result of the conduct of Southern Clays, Inc., and since that company has by contract undertaken to indemnify it for injury to its employees by reason of any act or omission on its part, it vouched that party into court in the damage suit along with its insurer, Bituminous Casualty Corporation, and the other defendant; that it was referred by the company to the insurer, and the insurer reported after investigation that there was no liability on Southern Clays, Inc., to Pagett; that accordingly these defendants have refused to defend the suit or interest themselves therein. It prayed that the rights and liabilities of the parties be judicially determined and that Pagett's action for damages be stayed until a determination thereof. As to its right to a declaratory judgment the railroad alleges:
"15. Petitioner shows that counsel for the said Pagett knows of the existence of the indemnifying agreement and the insurance contract above described. At the trial of said cause said attorneys will be entitled to qualify the jurors on the panel from which the jury will be stricken as to the relationship of such jurors not only to petitioner, but also as to their relationship to Southern Clays, Inc., Bituminous Casualty Corporation and Savannah Kaolin Company. Thus it will be that petitioner will be sent to trial before jurors who may well infer that any verdict which they may return against petitioner will be paid in whole or part by the other parties named. Such procedure could result in the assessment of damages substantially higher than those which might be assessed should the jurors be qualified as to their relation to this petitioner only. 16. Petitioner, in the handling of the Pagett claim and the litigation now pending, is faced with the necessity of making important and troublesome decisions. Questions growing out of the preparation of the defense to the law suit and trial of same must be decided and the ever present problem in such matters: to wit, should the case be tried or settled, is here involved. Petitioner shows the court that large demands are being made by Pagett's counsel for a settlement of the claim. Petitioner shows the court that it is important at this time for this petitioner to know whether or not the Bituminous Casualty Corporation, and the Southern Clays, Inc., and Savannah Kaolin Company are liable to the said Pagett for his injuries, or whether such liability rests exclusively with this petitioner. 17. Petitioner shows that a bona fide controversy exists between it on the one part and Southern Clays, Inc., represented by Bituminous Casualty Corporation, and Savannah Kaolin Company on the other part, and brings this its bill for the purpose of having said controversy adjudicated by this court, to the end that all of the uncertainty in the situation may be eliminated and the parties may proceed intelligently in the handling of said claim."
The trial court sustained a motion to dismiss the petition, thus adjudicating that there was no cause of action for declaratory judgment set forth, but granted a supersedeas pending the appeal. The judgment sustaining the motion to dismiss is assigned as error.
"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 and insecurity with respect to the propriety of some future act or conduct which is properly incident to his alleged rights, and which future action without such direction might reasonably jeopardize his interest." Sumner v. Davis, 211 Ga. 702 (1) ( 88 S.E.2d 392), and citations.
The plaintiff, of course, has an adequate remedy at law. He has vouched the defendant company and its insurer into court, which action will conclude them as to the liability and amount of damages which may be recoverable by Pagett in his damage action, in the event these defendants have a liability over but will not adjudicate the existence of liability as between them and the railroad company. Code § 38-624; Southern Ry. Co. v. Acme Fast Freight, Inc., 193 Ga. 598 ( 19 S.E.2d 286, 140 A.L.R. 1118). Whether the liability over exists may be ascertained by an action on the contract, but it cannot be maintained until the existence of the railroad's liability is determined by some procedure known to law and the amount thereof becomes ascertainable. The plaintiff here, however, desires to have existence of a liability over determined in advance of the determination of the existence of such liability in the first instance. Regardless of whether or not such adjudication would fall within the prohibited area of advisory and hypothetical opinions (see Bankers Life Casualty Co. v. Cravey, 90 Ga. App. 113, 82 S.E.2d 150), the plaintiff here merely alleges that he needs guidance and protection with respect to some future act (a) not of its own but of the trial judge in qualifying the jury on the trial of the Pagett case, and (b) decisions of its own as to whether to go to trial or to settle the Pagett case. As to its first reason it is alleged that if the trial court qualifies jurors in relation to Southern Clays, Inc., and its insurer, the jury, being apprised of the apparent existence of codefendants, may render a larger verdict than it otherwise would. This court cannot presume that the jury trying the case will be influenced by illegal considerations, and it will not be trying the monetary worth of the defendants but the monetary value of the injuries received by the plaintiff, if it finds the defendant to be liable to him. As to the second reason advanced, the plaintiff alleges that "large demands are being made by Pagett's counsel for a settlement of the claim," but fails to allege that it is ready and willing to pay any amount in settlement of the claim which would be acceptable to Pagett's counsel, or is willing to accept any offer of settlement made by Pagett or his counsel, or that it would settle the case in any event. It thus appears that the defendant shows no set of facts wherein it needs the guidance and protection of the court to protect its rights and legal status, but rather it desires such adjudication merely for convenience in going about the procedural aspects of the trial of the Pagett case. Accordingly, no legal right of the plaintiff is jeopardized so as to make the declaratory judgment action tenable in view of the existing remedies. Under the Act of 1945 (Ga. L. 1945, p. 137; Code, Ann. Supp., § 110-1101) the court may "declare rights, and other legal relations of any interested party petitioning" (italics ours), and the question is not before us as to whether if the defendant Southern Clays or its insurer was seeking guidance as to its proper procedure under the terms of the contract this relief might be obtained by such petitioners. this case is also different from the cases of Georgia Casualty c. Co. v. Turner, 86 Ga. App. 418 ( 71 S.E.2d 773); Mensinger v. Standard Accident Ins. Co., 202 Ga. 258 ( 42 S.E.2d 628); and Drake v. General Accident c. Assurance Corp., Ltd., 88 Ga. App. 408 ( 77 S.E.2d 71), for the reasons that (a) the insurers there had a duty, if coverage existed, to defend the damage action, (b) the petitioners seeking relief were insurance companies confronted with an immediate decision as to whether or not to defend the actions against their insured, and (c) if coverage existed, their duty to defend was absolute. Here the indemnitor and its insurer are not seeking the guidance of the court; so far as appears from this record there is no duty upon either of them to defend the action even if liability exists, and there is no controversy as to the existence and meaning of the contract provision, but the only question is whether the facts of the Pagett case, in the event liability is there fixed against the railroad, will be such as to bring the transaction within the terms of the indemnifying agreement. For all these reasons the Turner case and similar decisions are not in point, and the trial court did not err in dismissing this action.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.