Opinion
40462.
DECIDED JANUARY 27, 1964.
Action on insurance policy. Wayne Superior Court. Before Judge Flexer.
W. Glenn Thomas, Albert E. Butler, for plaintiff in error.
William A. Zorn, contra.
1. A policy of insurance in which the insurer agrees "to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages . . . sustained by any person caused by accident and arising out of the ownership, maintenance or use of the automobile" is a contract to pay liabilities rather than a contract of indemnity, and the cause of action thereon is complete when the liability attaches rather than after the discharge by the insured of the liability insured against. Hodges v. Ocean Acc. c. Corp., 66 Ga. App. 431, 433 ( 18 S.E.2d 28); Liberty Mut. Ins. Co. v. Atlantic C. L. R. Co., 66 Ga. App. 826 (2) ( 19 S.E.2d 377).
2. It follows, therefore, that where, as in the present case, an insured under such a policy has judgments obtained against him in suits defended by the insurer, which judgments are within the terms of the policy and the insurer, after demand refuses to pay such judgments, the insured may maintain an action therefor against the insurer. Hodges v. Ocean Acc. c. Corp., 66 Ga. App. 431, 433, supra; Liberty Mut. Ins. Co. v. Atlantic C. L. R. Co., 66 Ga. App. 826, supra; Maryland Cas. Co. v. Sammons, 63 Ga. App. 323 ( 11 S.E.2d 89); Aetna Cas. c. Co. v. Starrett, 102 Ga. App. 278 (3) ( 115 S.E.2d 641), (following the Hodges case). While the Hodges case ruled that the holder of a judgment against an insured under such a policy might proceed against the insurer by garnishment, such holding was necessarily predicated upon the antecedent ruling that the insurer was liable to the insured. Unless the debtor can recover, the garnishing plaintiff may not recover, as his recovery is predicated upon the rights of the debtor, Bates Co. v. Forsyth, 69 Ga. 365 (1b), Singer Sewing Machine Co. v. Southern Grocery Co., 2 Ga. App. 545 ( 59 S.E. 473), except in cases of fraudulent transfers, and even in these instances, the fiction of the debtor's right to recover is preserved. The trial court did not err in overruling the general demurrer to the petition.
3. While the bill of exceptions recites the overruling of general and special demurrers, the only judgment excepted to is the overruling of the general demurrer in a designated paragraph of the demurrer. Under these circumstances, this court cannot consider the question as to the overruling of the other demurrers. Ayares Small Loan Co. v. Maston, 78 Ga. App. 628 (4) ( 51 S.E.2d 699); Sherrill v. Sherrill, 202 Ga. 288 (1) ( 42 S.E.2d 921).
Judgment affirmed. Felton, C. J., and Frankum, J., concur.