5 S.E.2d 597 | Ga. Ct. App. | 1939
The court erred in overruling the general demurrer.
1. The suit was for personal injuries alleged to have arisen by reason of the negligence of Ware County in the performance of a duty owed to a pay patient of a hospital operated by it under constitutional authority. Under the ruling of the Supreme Court in answer to certified questions in this case (Ware County v.Cason,
2. In circumstances where a county is not subject to suit for injuries complained of, there is no provision of law authorizing a court of law to "fix the liability" of an insurance company under a policy indemnifying the county against loss by reason of such injuries, and agreeing to pay patients for injuries received in a case where the insurance company is not a party. The court which passes upon the ultimate liability of the insurance company must also decide on the existence and the amount of such liability, in the absence of statutory provision to the contrary.
3. The petition set forth no cause of action against Ware County. The court erred in overruling the general demurrer.
Judgment reversed. Stephens, P. J., and Sutton, J., concur.