54 Ga. App. 353 | Ga. Ct. App. | 1936
A misjoinder of parties is a defect which should be taken advantage of by special demurrer filed at the first term. Burkhalter v. Peoples Bank, 175 Ga. 744 (3) (165 S. E. 749); Ga. R. Co. v. Tice, 124 Ga. 459, 462 (52 S. E. 916, 4 Ann. Cas. 200); Willingham v. Glover, 28 Ga. App. 394 (111 S. E. 206), and cit. There being no demurrer to the instant petition, which was brought to recover automobile damages jointly against an individual motor carrier and the insurer, on an insurance policy given under the provisions of section 7 of the motor common-carrier act of 1931 (Ga. L. 1931, pp. 199, 203; Code, § 68-612), there is no merit in the contention of the insurer in this court that it could not be joined with the motor carrier in the same action on the policy. Moreover, the decisions of this court in LaHatte v. Walton, 53 Ga. App. 6 (184 S. E. 742), and Laster v. Maryland Casualty Co., 46 Ga. App. 620 (168 S. E. 128), are controlling, and would determine the merits of this contention adversely to the insurer.
The general and special grounds of the insurer’s motion for new trial, after a verdict of $200 in favor of the plaintiff, which are based on the specific contention that an express provision of the policy precluded suit against the company until the amount of liability should first be determined by a final judgment against the carrier alone, likewise are concluded, adversely to the insurer, by the recent decision in Great American Indemnity Co. v. Vickers, 53 Ga. App. 101 (185 S. E. 150). That case, like this, involved liability to a member of the general public by the same insurer of the owner of a motor truck under a similar policy provision, that “no action shall lie against the company to recover for any loss, . . unless it shall be brought to recover for loss . . the amount of which shall have been definitely determined, (a) by final judgment after trial of the is
Judgment affirmed.