Opinion
37189.
DECIDED JULY 1, 1958. REHEARING DENIED JULY 30, 1958.
Complaint. McDuffie Superior Court. Before Judge Norman. March 4, 1958.
Fulcher, Fulcher, Hagler Harper, E. D. Fulcher, Knox Neal, for plaintiff in error.
Randall Evans, Jr., contra.
The trial court erred in overruling the demurrers filed to the plaintiff's complaint.
DECIDED JULY 1, 1958 — REHEARING DENIED JULY 30, 1958.
A complaint was filed by C. Roy Jones alleging damages incurred in a school bus collision. The bus was insured by the State Farm Mutual Insurance Company (hereinafter called the insurance carrier). A justice of the peace issued a summons for the insurance carrier to answer the complaint of the plaintiff.
The insurance carrier demurred as follows: (1) Because neither the summons nor the complaint separately or together set forth any cause of action against the defendant, and (2) Because the basis of the claim for damages is not set forth: what was damaged; how the damages were incurred; "with what the school bus collided"; who was the owner of the object with which the school bus collided; whether or not the school bus was in operation and if so by whom; and any connection or agency or relation between the said driver and the owner thereof; the policy to which reference is made is not attached nor the portion thereof appearing above the signature set forth nor any basis for said damages alleged; nor does the plaintiff allege compliance with the terms of the policy to which reference is made in the petition.
The plaintiff amended the complaint to comply with the demurrers as follows: (1) The amount of the damages incurred is $175; (2) The damages were to the Kaiser car of Thomas P. O'Shields which car was involved in a collision with the said bus, and wherein the driver of the said car was not at fault in any particular, and (3) The action is brought under Ga. L. 1947 (the page being omitted) and Ga. L. 1949, pp. 1155, 1156 regarding liability insurance on school buses.
The insurance carrier renewed the demurrers as follows: (1) Because the amended complaint sets forth no cause of action; (2) Because the amended complaint does not show any right in the plaintiff to recover and there is a non-joinder of parties plaintiff; (3) Because the insurance carrier also specially demurs to paragraph 2 of the amended complaint for the reason that the same fails to show what legal interest he had in the car at the time the alleged injury thereto was committed, what relation then existed and now exists between the plaintiff and Thomas P. O'Shields, and what privity there is between O'Shields and the plaintiff and/or the alleged tort; (4) The insurance carrier specially demurs to paragraph 3 of the amended complaint because the act of 1947 is not identified, its applicability, relevancy or materiality are not alleged, and that Ga. L. 1949, pp. 1155, 1156 does not authorize the plaintiff to maintain the present complaint because it is not shown that he was within the class of persons sought to be protected, nor does the same confer upon him any right of direct action against the insurance carrier.
Before any order was passed on these demurrers the plaintiff amended his complaint and thus the original demurrers and the demurrers as renewed were before the court. The court overruled general ground 1 of the demurrers and as to general ground 2 stated: "Ground 2 of the within demurrer, in view of plaintiff's amendment to his complaint is hereby overruled, except the following portion thereof, to wit, beginning in the fifth line thereof, `and any connection or agency or relation between said driver and the owner thereof,' which is hereby sustained, with the right of plaintiff to amend his complaint to meet said objection on or by May 28th, 1955, or else the suit is to be considered as dismissed." On the renewed demurrers the court ruled as follows: "Grounds 1 and 2 of the within demurrer in the within stated case are hereby overruled. Ground 3 of the within demurrer is hereby sustained, with the right of plaintiff to amend his complaint to meet the ground thereof on or by May 28th, 1955, or else the suit is to be considered as dismissed."
The plaintiff then amended the complaint a third time by striking the second amendment entirely and adding a new sentence to the original complaint to read as follows: "The driver and owner were not connected, and were not related, but the driver was using said bus with permission of the owner, and except as above set forth, no connection, agency, or relation existed between the driver and the owner." In this third amendment the plaintiff added the following paragraphs also: "2 (a). The damages to said Kaiser automobile in said collision amounted to $175, which damages have been by plaintiff paid to said Thomas P. O'Shields, and the right of action arising therefrom is a right of property and has been by said Thomas P. O'Shields subrogated to plaintiff, which is a legal right of plaintiff as subrogee against defendant.
"2 (b). At the time the Kaiser automobile was injured, plaintiff had no legal interest therein, but afterwards he acquired a legal interest in the injury and damages thereto and the amount of money paid therefor through having paid same and having become the subrogee of said Thomas P. O'Shields.
"2 (c). No relation then existed between Thomas P. O'Shields and plaintiff, but now the relationship of subrogation by Thomas P. O'Shields to plaintiff exists between them.
"2 (d). The privity that exists between plaintiff and Thomas P. O'Shields is the subrogated rights of Thomas P. O'Shields to plaintiff because of said damages as above set forth.
"2 (e). The privity between plaintiff and Thomas P. O'Shields and plaintiff and/or the alleged tort is that plaintiff has become the subrogee of said Thomas P. O'Shields as to said alleged tort which is a property right."
The insurance carrier renewed the demurrers substantially as follows: (1) Because the said complaint as amended a third time sets forth no cause of action; (2) Because the plaintiff's complaint as amended and particularly the amendment to the first paragraph of plaintiff's third amendment adding a new sentence to his original complaint does not allege therein or elsewhere in the complaint as amended the nature and purpose of the permissive use granted by the owner to the driver, when the same was given, or the circumstances thereof. Furthermore the granting by the owner of permission to the driver does not make the driver the agent of the owner so as to impose legal liability upon the owner. (3) Because the defendant specially demurs to the complaint as amended and particularly to the second paragraph of plaintiff's third amendment in which he adds paragraphs numbered 2a, b, c, d, and e to his first amendment because it is not alleged in paragraph 2a whether payment by the plaintiff to O'Shields was voluntary and if not, why, how, or for what reasons he had to pay said damages; because it does not appear whether the alleged subrogation is equitable, conventional, or legal, or the circumstances under which it arose, and whether same is shown by a written instrument, and if it is shown by a written instrument such is not copied therein or attached thereto; because it is not alleged that if the damages to O'Shields were damages for which the plaintiff was legally liable, what right of action, subrogated or otherwise, he had against this defendant; because said allegation that his is a legal right is merely a conclusion of the pleader in the absence of allegation of facts surrounding said agreement, and nowhere in said paragraphs or subparagraphs does it appear how the plaintiff was subrogated to the rights of O'Shields, how he became his subrogee, what evidence of subrogation existed and what constituted the subrogated rights of O'Shields.
The court overruled ground 1 and gave the following ruling on the other grounds: "Ground 2 of the within demurrer is hereby sustained, with the exception of the last clause thereof, with the right of plaintiff to amend his petition to meet the parts of said ground sustained on or by June 2, 1956, else the parts of plaintiff's petition attacked thereby is to be considered as stricken. The last clause of said ground is hereby overruled.
"Ground 3 of the within demurrer is hereby sustained with the right of plaintiff to amend this petition to meet same on or by June 2, 1956, else the parts of plaintiff's petition attacked thereby is to be considered as stricken."
The plaintiff added a fourth and last amendment to the complaint by adding the following paragraphs to the third amendment: "1 (a). The nature and purpose of the permissive use granted by the owner to the driver was an oral permission for the purpose of having the driver take exclusive charge and control of said vehicle; and in order to permit the owner to leave said vehicle and not remain in active custody and control, and in order that the owner might devote his time to other matters while thus relieved through active control of said vehicle being placed with said driver.
"1 (b). The said permission was given on September 10, 1954.
"2. By adding the following paragraphs to paragraph 2 of said third amendment, as follows, to wit: 2 (e). The payment by plaintiff to Thomas O'Shields was voluntary, when the said truck of Campbell collided with the automobile of Thomas P. O'Shields, and whereby Thomas P. O'Shields' vehicle was damaged, and the said O'Shields insisted that John Campbell and his insurer (this defendant) were liable to him for said damages; and plaintiff thereby paid same to him upon said O'Shields assigning to plaintiff his right of action against the defendant, which directly involved a right of property.
"2 (f). The subrogation and assignment from Thomas P. O'Shields to plaintiff was conventional.
"2 (g). The subrogation is not evidenced by a written instrument.
"2 (h). The payment made by plaintiff to Thomas P. O'Shields was the amount of money which O'Shields insisted defendant and its insured owed to him, and as to which he contends defendant and its insured were legally liable to him and plaintiff, acting upon said representation, and believing that defendant was legally liable, paid said money to Thomas P. O'Shields who assigned his right of action, which directly involved a property right, to plaintiff.
"2 (i). The right of action which plaintiff has against defendant is the right of action that Thomas P. O'Shields had against defendant as the liability insurer of the school bus of John Martin Campbell, being policy No. 470278-827111 issued August 20, 1954, covering the period from August 27, 1954 to May 27, 1955, being the same policy as is described in the original complaint in this case, and which cause of action arises under the Acts of 1947, and Acts of 1949, pages 1155, 1156 respecting liability insurance on school buses, and also under Georgia Code § 85-1805.
"2 (j). Plaintiff became the subrogee of the said Thomas P. O'Shields through payment to the said Thomas P. O'Shields of the amount of money representing the value of the damages incurred through the collision in the case by Thomas P. O'Shields' vehicle, which the said Thomas P. O'Shields had the legal right to assert against defendant, and which said Thomas P. O'Shields then and there agreed to, and did set over to this plaintiff; plaintiff thereby becoming the subrogee of the said Thomas P. O'Shields; and the evidence of the said subrogation not being in writing, but all property rights of the said Thomas P. O'Shields against the defendant growing out of said collision have been by said Thomas P. O'Shields subrogated and assigned to this plaintiff; plaintiff alleges on information and belief that plaintiff was not legally liable to O'Shields for said payment.
"Plaintiff adds count 2 to his complaint, and herein realleges each and every allegation made in his original complaint, his first, third and fourth amendments, except the following paragraphs from his fourth amendment, to wit:
"Paragraphs 2 (e); 2 (f); and 2 (h); and 2 (j); and in lieu thereof, he alleges as follows: 2 (e) The payment by plaintiff to Thomas O'Shields was involuntary; and the said Thomas P. O'Shields insisted that defendant and plaintiff were liable to him because of the collision, and because of O'Shields' demands, and threats of legal action, he involuntarily paid said demand in the amount of $175.
"2 (f) Plaintiff avers that his subrogation from Thomas P. O'Shields was legal."
The insurance carrier demurred to this final amendment on the following grounds: (1) Because count 1 of the amended complaint sets forth no cause of action; (2) Because count 1 sets forth no cause of action because it appears from paragraph 2 of its subparagraphs that the payment made of O'Shields was voluntary and that said subrogation or assignment was not in writing; (3) The defendant demurs specially to count 1 of the complaint as amended for the reason that it is duplicities and contradictory in that the words "subrogation" and "assignment" are used interchangeably by the plaintiff; (4) The defendant demurs specially to the allegations of count 1 of the fourth amended complaint because it is not alleged in paragraph 1 (a) thereof as to the identity of the driver of the bus at the time of collision; (5) Because count 1 fails to set forth any cause of action against the defendant because the allegations of paragraph 2 and the subrogation; (6) The defendant demurs specially to count 1 of the complaint and moves to strike paragraph 2 (i) thereof because the same is a conclusion of the pleader and contrary to law.
As to count 2, which was added by the fourth amendment, the defendant demurs substantially as follows: (1) Because count 2 does not set forth a cause of action; (2) Because no cause of action is set forth for the reason that the allegations of count 2 are insufficient in law to constitute involuntary payment by the plaintiff to O'Shields and further that the count contains allegations which are insufficient to show legal subrogation in favor of O'Shields and is a conclusion which is contrary to law; (3) The defendant demurs specially to paragraph 2 (e) of count 2 of the plaintiff's complaint because there is nothing alleged therein or elsewhere to show the basis for O'Shields' claim for liability because of the collision; (4) The defendant adopts, realleges and reurges each and every ground of the original demurrer and the amended demurrer to the first, third and fourth amendments except the paragraphs of the demurrers challenging 2 (e, f, h, and j) of the plaintiff's fourth amendment.
The court overruled each and every ground of the demurrer as amended. It is on this judgment that the case is here for review.
1. The insurance carrier filed a motion to this court to dismiss the writ of error, which motion we shall pass upon before passing upon the merits of the case, Counsel for the defendant in error has filed a motion to dismiss because counsel for the plaintiff in error has not complied with the statute and rules regarding the filing of the bill of exceptions. The record shows that the final order on demurrers was signed on March 4, 1958. The bill of exceptions was tendered to the trial court on March 24, 1958. The bill of exceptions was tendered according to the court rules. The judge signed the bill of exceptions on April 12, 1958, nineteen days following the date when the bill of exceptions was tendered. The judge does not show by certificate nor does the record specify or show any cause for delay. Code (Ann.) § 6-909 reads as follows: "If the judge shall determine that the bill of exceptions is not true, or does not contain all the necessary facts, he shall return the same, within 10 days, to the party or his attorney, with his objections to the same in writing. If those objections shall be met and removed, the judge may then certify, specifying in his certificate the cause of the delay. The judge shall order notice to the opposite party of the fact and time of tendering the exceptions and may hear evidence as to the truth thereof." Code (Ann.) § 6-909, providing as follows: "If the judge shall determine that the bill of exceptions is not true, or does not contain all the necessary facts, he shall return the same, within 10 days, to the party or his attorney, with his objections to the same in writing" (italics ours) must be read in conjunction with Code (Ann.) § 6-908.1, providing: "In cases where the defendant in error named in a bill of exceptions is represented by an attorney at law or appears in propria persona, the judge, before certifying the bill of exceptions, shall require reasonable notice to such attorney or such party and afford him an opportunity to be heard on the question of whether or not the bill of exceptions as tendered is correct and complete" (italics ours), and also in pari material with Code § 6-1312 providing: "No bill of exceptions shall be dismissed upon the ground that the same was not certified by the judge in the time required by law for tendering and signing bills of exceptions; but if it shall appear from the bill of exceptions that the same was tendered to the judge within the time required by law, a mere failure on his part to sign the same within the time prescribed shall be no cause for dismissal, unless it should appear that the failure to sign and certify the same by the presiding judge within the time prescribed by law was caused by some act of the plaintiff in error or his counsel."
In the present case, counsel for the plaintiff in error, although they had 30 days in which to tender the bill of exceptions, actually tendered it within 20 days. The court then set a date for hearing 19 days from the day of tender, which time is certainly a reasonable time under the provisions of Code § 6-908.1, and is also within a total time limit of 30 days to tender a bill of exceptions plus 10 days for the judge to examine the same. Nor does it appear that the date for hearing on the rule nisi was caused "by some act of the plaintiff in error or his counsel" rather than by the act of the trial judge in setting the date.
Clay v. Floyd, 208 Ga. 374 ( 66 S.E.2d 916) is not authority to the contrary. In that case the trial court held the bill of exceptions for "some wholly undisclosed cause" for a period of 82 days. It is there stated (p. 376) that the trial judge "certified that reasonable notice of the presentation of the bill of exceptions had been given to counsel for the defendants in error and that an opportunity to be heard on the question of whether or not it was correct and complete had been afforded them. However, the record contains no fact or circumstance indicating that a hearing was had for the purpose of correcting or completing the bill of exceptions. . . Within ten days after the bill of exceptions was presented to the trial judge, he should have certified it or proceeded in the manner and way now provided by law to correct or complete it; but his failure to do so would not work a dismissal of the writ of error, unless caused by some act of the plaintiffs in error or their counsel of record." (Italics ours.) Here the judge, within the 10-day period, took some action toward the completion of the bill of exceptions by setting a reasonable date for a hearing thereon, and on the same date the hearing was had the bill of exceptions was certified. We accordingly think there was a full compliance with the rules of procedure, under the Clay case, which is the very case relied upon in support of dismissal. No other case has gone so far. No case has held the bill of exceptions dismissible, when held for any cause for a period of 30 days or less. See Moore v. Kelly Jones Co., 109 Ga. 798 ( 35 S.E. 168), Proctor v. Piedmont Portland Cement c. Co., 134 Ga. 391 ( 67 S.E. 942), and Hartley v. Marietta Nursery Co., 138 Ga. 736 ( 76 S.E. 39). That 30 days after tender would appear the minimum before such a motion would be good in any event see Allison Davis v. Jowers, 94 Ga. 335, 336 ( 21 S.E. 570), and Thompson v. Stephens, 138 Ga. 205 ( 75 S.E. 136). The motion to dismiss the bill of exceptions is not meritorious.
2. Counsel for the insurance carrier cite and quote from Hoffman v. Chester, 204 Ga. 296, 307 ( 49 S.E.2d 760) to the following effect: "A general demurrer only admits facts well pleaded. Where allegations are equivocal, doubtful, or subject to different interpretations, they will be construed most strongly against the pleader." This is a true principle of law and correct also is the principle of law that a demurrer will prevail if a fair inference may be drawn from the pleadings unfavorable to the plaintiff. See Hulsey v. Interstate Life c. Ins. Co., 207 Ga. 167 ( 60 S.E.2d 353), Moore v. Seaboard Air-Line Ry. Co., 30 Ga. App. 466 ( 118 S.E. 471), and Conaway v. McCrory Stores Corp., 82 Ga. App. 97, 100 ( 60 S.E.2d 631).
Since the niceties of pleadings are not required in justices' courts, the plaintiff needs to do nothing more than to inform the insurance carrier of the nature of the demand against it, and specific allegations of negligence are not necessary. See Southern Ry. Co. v. Grizzle, 45 Ga. App. 428 ( 165 S.E. 149). It is true that, should a petition contain a count which is voluntarily stricken, if any of the remaining counts set forth a good cause of action, the demurrer should be overruled. See Hay v. Collins, 118 Ga. 243 (2) ( 44 S.E. 1002), and Pryor v. Brady, 115 Ga. 848 ( 42 S.E. 223). Counsel for the insurance carrier contend that the insurance policy should have been attached or copied into the pleadings and cite Southern Mutual Ins. Co. v. Turnley, 100 Ga. 296 ( 27 S.E. 975) in support of this contention. Counsel for the insurance carrier and for the plaintiff cite Code § 81-105 in support of their respective contentions. The pleadings in the instant case required that a copy of the policy be attached or that the petition allege the language it contained. It is presumed that the policy was issued in accordance with statutory provisions. See Monday v. Life Cas. Ins. Co. of Tenn., 82 Ga. App. 650, 651 ( 62 S.E.2d 197), and Curtis v. Girard Fire c. Ins. Co., 190 Ga. 854 ( 11 S.E.2d 3).
Ga. L. 1949, p. 1155, sec. 1, provides that school boards "are hereby authorized and required to cause policies of insurance to be issued insuring the school children riding therein."
The act of 1949 (Ga. L. 1949, p. 1155, et seq.) does not provide that the driver of the school bus must be the agent of the owner of the school bus and likewise does not require that the school bus driver must be acting within the scope of his employment.
It is nowhere alleged that the plaintiff was in fact the person referred to herein as the driver of the school bus. No right is shown in the plaintiff except insofar as he alleges that this right of action was assigned to him. He shows there was no written assignment, and an assignment of a chose in action must be in writing to entitle the owner to sue in a direct action at law in his own name. Lamon v. Perry, 33 Ga. App. 248, 250 ( 125 S.E. 907); First National Bank v. Hartman Steel Co., 87 Ga. 435, 438 ( 13 S.E. 586).
In count 1 the plaintiff alleges that his payment of the amount of damages incurred by O'Shields to him was voluntary and that he is a conventional subrogee. A conventional subrogee is one who pays under an express or implied agreement with either debtor or creditor that he would be subrogated to creditor's rights and remedies. McCollum v. Lark, 187 Ga. 292 ( 200 S.E. 276). Only a court of equity has jurisdiction of conventional subrogation. See Bleckley v. Bleckley, 189 Ga. 47 (1) ( 5 S.E.2d 206).
The exception to this rule is noted in First National Bank of Atlanta v. American Surety Co., 71 Ga. App. 112, 119 ( 30 S.E.2d 402), where an assignment in writing existed, and the court stated: "Conventional subrogation can take effect only by agreement; and it has been said to be synonymous with assignment." Bleckley v. Bleckley, supra, and Lee v. Holman, 182 Ga. 559 (3) ( 186 S.E. 189), where it was held that agreements for subrogation need not be in writing, were equity cases. It follows that, where the type of agreement on which the action is brought is alleged to be an assignment of a chose in action, and it is no more than an assignment, a mere purchase of another's cause of action, it must be in writing if the assignee is to sue thereon in his own name in a purely legal action.
In count 2 the plaintiff alleges that his payment was involuntary and that he was a legal subrogee, — that is, one who is equitably entitled to the remedy by operation of law because he has advanced money to pay a debt which, in the event of default by the debtor, he would be bound to pay, or where he has some interest to protect. These allegations were attacked by appropriate special demurrers which should have been sustained, since no facts are alleged to show that the plaintiff occupies this position.
The act of 1949, supra, has been construed in Krasner v. Harper, 90 Ga. App. 128 ( 82 S.E.2d 267), to the effect that where county or other boards of education took out the insurance described therein the persons insured were beneficiaries; that their action was not against the members of the school board but was an action in contract directly against the insurance company on the theory of third party beneficiaries. This being true, the petition in the instant case contains three fatal deficiencies, none of which occurred in the Krasner case, as follows:
(1) While the act requires that the insurance be taken out for the benefit of school children, it merely authorizes that it be taken out for members of the general public, leaving this up to the board. There is no allegation here, as there was in the Krasner case, that the board did in fact take out a policy of insurance for members of the general public.
The contention that the act of 1949, supra, requires school boards and owners of school buses to insure against injury to the general public is without merit. Section 1 of the act (Code, Ann., § 32-429) authorizes and requires policies of insurance to be issued insuring school children riding therein to and from school against death and bodily injury. Section 3 of the act (Code, Ann., § 32-431) merely "authorizes" a similar provision for the benefit of members of the general public. This is accident insurance, not liability insurance, and the question of negligence is not involved. The fact that the caption of the act reads as follows: "An act authorizing and requiring the various school boards of the counties, cities and independent school systems employing school buses, to cause policies of insurance to be issued insuring the children riding therein as well as the general public against death, bodily injury and property damage resulting from accidents in which said buses are involved" has no effect upon section 3 of the act, as contended, so as to make the insertion of a provision in the policy in favor of members of the general public mandatory.
(2) The plaintiff does not show himself to be a member of the general public injured under circumstances which would place liability on the insurer. Insofar as he shows that he paid a debt owed by the defendant insurer to O'Shields (owner of the damaged automobile) he fails to show an assignment of the right of action to himself so as to permit him to sue in his own name, nor does he show the payment to have been "involuntary" in the legal sense of the word, and this allegation is attacked also by special demurrer.
(3) In the Krasner case there was an allegation that the policy protected members of the general public. No special demurrer was filed on the ground that the policy was not attached. The court pointed out that its holding that a cause of action was set out against the insurance company was based on these two factors. Here, the fact of the policy is demanded by appropriate demurrer, and since it forms the basis of the cause of action (if otherwise one should exist in favor of the plaintiff) it must be pleaded under Code § 81-105.
The court erred in overruling the general and special demurrers filed to the plaintiff's complaint as last amended.
Judgment reversed. Townsend and Carlisle, JJ., concur.