183 Ga. 233 | Ga. | 1936
Mrs. Belle Vickers brought suit against the Great American Indemnity Company, to recover damages for loss of services of her minor son, Woodrow Vickers, on account of personal injuries sustained by him, due to the alleged negligence of Richard B. Vickers as a motor common carrier, through his servants, in the operation of a motor truck along a public highway of this State. The suit was brought, not against Richard B. Vickers, but against Great American Indemnity Company as the sole defendant. The plaintiffs right to recover was predicated on an insurance policy which it was alleged had been issued, pursuant to the provisions of the motor common-carrier act of 1931 (Ga. L. 1931, p. 199), to Richard B. Vickers by Great American Indemnity Company. A copy of the policy, with the riders thereon, was attached to the petition. The Great American Indemnity Company demurred generally to the petition, and challenged the plaintiffs right to recover upon the insurance policy in a direct action against the insurer, without first having obtained a judgment against Richard B. Vickers, or having joined him as a party defendant. The court overruled the demurrer, and the Court of Appeals affirmed that ruling. Great American Indemnity Co. v. Vickers, 53 Ga. App. 101 (185 S. E. 150). The case is now before this court on the grant of a writ of certiorari to review the judgment of the Court of Appeals.
The policy attached to the petition and alleged to have been issued to Richard B. Vickers pursuant to the provisions of the act of 1931, supra, provides that the Great American Indemnity Company has obligated itself “to pay all sums which the assured shall become liable to pay as damages imposed by law arising out of bodily injuries (and loss of services incidental thereto) including death at any time resulting therefrom, to any person,” caused from the operation of a certain motor truck of Richard B. Vickers, which motor truck caused injuries to plaintiffs minor son. Section 7 of the act of 1931 declares: “No certificate [of public convenience required under the act] shall be issued or continued in operation unless the holder thereof shall give and maintain bond, with adequate security, for the protection, in case of passenger-vehicles, of the passengers and baggage carried, and of the public, against injury proximately caused by the negligence of such motor common carrier, its servants or agents; and in cases of vehicles transporting
According to the language and patent intendment of the statute (act of 1931) the bonds provided for therein are solely for the benefit of those persons who by reason of the negligence of the carrier, its servants or agents, may have a cause of action for damages (Laster v. Maryland Casualty Co., 46 Ga. App. 620, 168 S. E. 128; LaHatte v. Walton, 53 Ga. App. 228, 184 S. E. 742), such bonds being “for the benefit of and subject to suit or action thereon by any person who shall sustain actionable injury or loss protected thereby.” (Italics ours.) If in the discretion of the commission the carrier is allowed to substitute a policy of “indemnity” insurance, such “policy must substantially conform to all of the provisions” of the statute “relating to bonds.” This does not mean that the policy of insurance shall be substantially like the bond in all respects, but it does mean that it shall be substantially like the bond in that such policy of insurance “shall be for the benefit of and subject to suit or action thereon by any person who shall sustain actionable injury or loss protected thereby.” This being true, the policy of insurance is not one of indemnity against loss as that term is generally understood; but is a direct and primary obligation to any person who shall sustain actionable injury or loss by reason of the negligence of the insured in the operation of his motor vehicles insured under the policy- The sustaining of actionable injury is, under the statute, the only condition precedent to a suit on the policy. When actionable injury is alleged in a suit on the policy, the terms of the statute are complied with, and the peti
Cases involving contracts of indemnity, guaranty, and suretyship, and statutes of other States, are not controlling in the case at bar, and are helpful only when the purpose and language of the contracts or statutes involved are sufficiently similar in purpose and language to the provisions of the act of 1931 as to call for the application of analogous legal principles; the case at bar being decided solely on the provisions of -the statute involved. In so far as the right of the injured party to sue directly upon the contract of insurance is concerned, the case is analogous to a contract of suretyship, in that under such contracts the surety may be sued separately from the principal. Code, § 103-309. This for the reason that there is a direct obligation assumed by the surety under the contract, and the substance and not the form of the contract is the material factor in determining the right to sue directly without joining, or previously obtaining judgment against, the principal. Amos v. Continental Trust Co., 22 Ga. App. 348, 95 S. E. 1025. By this we do not mean to say that all the attributes of suretyship attach to the insurance contract in the case at bar, but only in so far as, by reason of the statute pursuant to which it was given, it expresses a direct obligation to pay one sustaining an actionable injury by reason of the negligence of the insured, his servants or'agents. From what we have said it follows that the judgment of the Court of Appeals should be affirmed.