Opinion
35583.
DECIDED APRIL 18, 1955.
Complaint. Before Judge Flournoy. Polk City Court. December 15, 1954.
J. M. Grubbs, Jr., for plaintiff in error.
Brantley Edwards, contra.
The petition fails to set forth a cause of action against the defendant, and, accordingly, the trial court did not err in sustaining the general demurrer to the petition on this ground.
DECIDED APRIL 18, 1955.
State Farm Mutual Automobile Insurance Company, a corporation, brought an action in the City Court of Polk County on September 23, 1954, against M. L. Davis. The petition alleged the following: The defendant is a resident of Polk County, Georgia. On or about September 6, 1949, the defendant was the owner of a 1949 Oldsmobile 4-door sedan automobile, which was insured by the plaintiff for, among other things, "To pay for direct and accidental loss of or damage to the automobile, hereinafter called loss, caused by collision of the automobile with another object or by upset of the automobile, but only for the amount of each such loss in excess of the deductible amount, if any, stated in the declarations as applicable thereto." On or about September 6, 1949, the defendant had a collision with such automobile and claimed a loss of $2,610, which was paid by the plaintiff to the defendant. Under the policy and in one of the paragraphs thereof it was stated: "In the event of any payment under this policy, the company shall be subrogated to all rights of recovery therefor against any person or organization. The insured and other payees, if any, shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights, and shall do nothing after loss to prejudice such rights." As a result of the payment under the policy, the plaintiff was given possession of the automobile, and the plaintiff sold it for $590. On or about April 25, 1950, the defendant through his attorneys brought an action against E. L. Gammage for $65,000, claiming among other things, as damages: That, "At the time of said collision, plaintiff was driving his 1949 model Oldsmobile sedan automobile. In said collision and as a result of having his automobile struck and forced into said ditch and culvert, the frame of his automobile was bent and split; the wheels of the automobile were crushed in; the body of the automobile was crushed in and put (out) of alignment; the steering mechanism was badly damaged; the motor was damaged and the automobile was otherwise damaged. Said automobile before the said collision had a fair market value of $2,700, but immediately after and because of said collision, it was not worth more than $600 at a fair market price." Paragraph 7 of the petition alleged "That after said suit was filed and before the trial of said case, the defendant and his attorneys were notified of plaintiff's claim." The case came on for trial on February 25, 1951, in the Polk Superior Court and a verdict and judgment were entered for the plaintiff, M. L. Davis, and against the defendant, E. L. Gammage, in the amount of $8,500. The defendant has received payment under this judgment and, although the plaintiff has made repeated demands for said money, the defendant has refused to pay the plaintiff anything in satisfaction of its claim. Process and a judgment for $2,100 were prayed for against the defendant. The defendant filed general and special demurrers to the petition. The following general demurrers were sustained (the special demurrers were not ruled on): 1. The defendant demurred generally on the ground that the averments were insufficient and failed to set out a cause of action against him. 2. The cause of action, if any, arose more than 4 years prior to the commencement of the suit, and therefore the cause of action, if any, was barred by the statute of limitations. To this ruling of the trial court the plaintiff excepts.
While by the action the plaintiff seeks subrogation against the defendant for reasons stated in the petition, it is not alleged that the collision referred to in the suit between the defendant here and E. L. Gammage involves the same collision which resulted in the plaintiff paying a claim to the defendant in the amount of $2,610. The petition, therefore, failed to set forth a cause of action for subrogation because it failed to show that the defendant here, after the plaintiff paid his claim, obtained a verdict and judgment against the same person who caused the collision on September 6, 1949. Accordingly, the trial court did not err in sustaining the general demurrer on this ground.
In view of the above ruling, the other ground of general demurrer need not be considered.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.