215 Ga. 684 | Ga. | 1960
On September.26, 1957, Travelers Indemnity Company issued and delivered to William C. Callaway a liability-insurance policy covering a 1955 Chevrolet dump truck. It afforded coverage up to a stated amount for any damage which the insured was liable for, resulting from bodily injury to a third person while said truck was being used for the sole purpose of hauling asphalt and gravel for Wilkes Construction Company. On June 9, 1958, and while hauling certain materials for Wilkes County, .the insured’s truck collided with another truck which was then being driven by H. Boyd Russell, and physically injured Daniel Lee Dunn, who was riding in the insured’s truck. A suit for a stated amount of damages was instituted by Dunn against the, insured and H. Boyd Russell, which suit is still pending. After Dunn’s suit was filed Travelers Indemnity Company filed a proceeding against the insured and against Dunn and his attorney of record, Walton Hardin, and prayed for process; a determination of its rights and liability under the policy of liability insurance it had is
“A defendant to any suit or claim in the superior court, whether such suit be for legal or equitable relief, may claim legal or equitable relief, or both, by framing proper pleadings for that purpose, and sustaining them by sufficient evidence.” Code § 37-905. In Clay v. Smith, 207 Ga. 610 (63 S. E. 2d 602), this court in headnote 2 of the opinion unanimously said: “A defendant in a suit in the superior court is bound to' set up all defenses that he has to the suit, either legal or equitable, and to pray for all the relief needed in aid thereof, ordinary or extraordinary; and he cannot at will decline to litigate as a defendant over these matters and bring an independent suit against his adversary who has already brought him into court.” There, it was held that the plaintiff’s independent suit was properly dismissed on general demurrer. In McCall v. Fry,
Judgment reversed.