Opinion
41024, 41025.
DECIDED DECEMBER 2, 1964. REHEARING DENIED DECEMBER 17, 1964.
Declaratory judgment, etc. Cobb Superior Court. Before Judge Henderson.
Greene, Neely, Buckley DeRieux, Burt DeRieux, James A. Eichelberger, for Travelers Indemnity Co.
Powell, Goldstein, Frazer Murphy, Frank Love, Jr., for State Farm Mut. Auto. Ins. Co.
Robert E. Flournoy, Jr., for Hood.
1. It is not against public policy for a contract for automobile liability insurance to cover liability of the insured arising out of wilful and wanton misconduct in unlawfully racing automobiles on a public highway.
2. A petition praying for declaratory judgment which shows that the rights of the parties have already accrued and alleges no facts or circumstances showing that an adjudication of the plaintiff's rights is necessary to relieve him of the risk of taking any future undirected action incident to his rights, which action without judicial direction might reasonably jeopardize his interest, fails to state a cause of action for declaratory judgment.
3. A petition alleging that two insurers are jointly and severally indebted on their separate automobile insurance policies for a judgment against an insured who is covered under one of the policies as a named insured and covered under the other policy as the user of a non-owned automobile, is subject to special demurrer on the ground of misjoinder in one action of claims based on two separate contracts against two separate defendants.
DECIDED DECEMBER 2, 1964 — REHEARING DENIED DECEMBER 17, 1964.
The plaintiff sued the defendants as insurers of Larry P. White praying for recovery of $10,000, the amount of a judgment that she had obtained against White, Latimer and others in an action for the death of her husband. A decision of this court in that action is reported in Hood v. Evans, 106 Ga. App. 360 ( 126 S.E.2d 898). The plaintiff's husband was killed in a collision with an automobile driven by Latimer and at the time allegedly being used and occupied in a joint enterprise by White and Latimer. This automobile was covered by a liability insurance policy issued to Latimer's mother by the defendant Travelers Indemnity Company (hereinafter called Travelers). This policy allegedly also covered White as a person using the automobile. White's liability arising out of the use of the Latimer automobile allegedly was insured also under the terms of an automobile liability policy of State Farm Mutual Automobile Insurance Company (hereinafter called State Farm) in which White was a named insured. Before the judgment against these insureds Travelers negotiated settlement with the plaintiff for $9,200 on behalf of Latimer. The petition alleged that each of the defendant insurers contended that the other was liable for the judgment against White and neither had paid any amount thereon; that Travelers contended its liability, if any, could be for no more than $800, the difference between the amount of its settlement on behalf of Latimer and the limits of its liability under the policy; and State Farm contended that White's liability was not covered by its policy and, if covered at all, only in excess of any coverage by the Travelers policy.
After demurrers were filed the plaintiff amended her petition and added a prayer that the court declare the rights of the parties as provided by the Declaratory Judgments Act ( Code Ann. § 110-1101) and declare the respective legal obligations of the defendants to terminate the controversy and remove uncertainty as to the legal responsibilities of each of the defendants. The trial court granted the plaintiff's motion for summary judgment, ordering that the plaintiff recover of Travelers $800 plus interest and recover of State Farm $9,200 plus interest. Each of the defendants assigns error on this judgment and on antecedent judgments overruling its demurrers. Travelers assigns error also on judgments denying its motion to dismiss and order of jurisdiction and its motion to strike the amendment to the plaintiff's petition.
1. The defendants argue in support of their general demurrers that their policies do not cover liability for the conduct upon which the judgment against their insured was based, because it is contrary to public policy to indemnify a person against his wilful and wanton misconduct. The plaintiff's judgment resulted from a negligence action in which the insured and others were charged with engaging in an automobile race on the highway. "Racing on a public highway contrary to the laws of the State" has been described by this court as wilful and wanton misconduct. Robert v. King, 102 Ga. App. 518, 523 ( 116 S.E.2d 885). It is an intentional act in reckless disregard of the safety of others, and is prohibited by the criminal as well as the civil law. The fallacy of the defendants' argument lies in the distinction between intentional act and intentional injury. The State Farm policy insured against liability for bodily injury "caused by accident and arising out of the ownership, maintenance or use" of the automobile. The Travelers policy insured payment of "all sums which the insured shall become legally obligated to pay as damages because of . . . bodily injury . . . arising out of the ownership, maintenance or use of the owned automobile . . ." excluding "bodily injury caused intentionally by or at the direction of the insured."
Courts and authoritative writers have considered it against public policy to insure against injuries intentionally inflicted. "Accident" and "intention" are converse terms. An accident refers to an unexpected happening rather than one occurring through intention or design. Hence, injuries "caused by accident" as used in an insurance contract would include injuries caused without the actor's intent or design to injure and would not include injuries intentionally inflicted. "Accident" is a more comprehensive term than negligence, although negligence is included in it. And the fact that an injury for the purposes of criminal or tort law may be held constructively intentional does not remove it from the category of injury "caused by accident" in the terms of an insurance contract. Sheehan v. Goriansky, 321 Mass. 200 ( 72 N.E.2d 538, 173 ALR 497); 7 Appleman, Insurance Law and Practice, 129, § 4312; Anno. 173 ALR 503. The policies pleaded in this case appear to be worded in recognition of these distinctions, which are in accord with reasonable understanding of the policy provisions by an insured. We hold that it is not against public policy for a contract for automobile liability insurance to cover liability of the insured arising out of wilful and wanton misconduct in unlawfully racing automobiles on a public highway.
This decision is consistent with the view expressed in cases cited by the defendants that public policy will not permit a person by contract to exempt himself from liability to others whom the law seeks to protect. See Louisville c. R. Co. v. Atlantic Co., 66 Ga. App. 791, 801 ( 19 S.E.2d 364); King v. Smith, 47 Ga. App. 360 ( 170 S.E. 546).
The trial court did not err in overruling the defendants' general demurrers.
2. After the plaintiff's amendment Travelers filed special demurrers and moved to strike the prayer for declaratory relief on the ground that the petition as amended did not show "uncertainty and insecurity on the part of the plaintiff with respect to the propriety of some future act or conduct by the plaintiff whereby such future action without the direction and guidance of the court might jeopardize petitioner's interest in some alleged right." The allegations of the petition concerning the positions of the defendants respecting their liability for the judgment against White are stated above. The petition alleges that the defendants are liable jointly and severally for the judgment against White in the amount of $10,000 and prays for recovery against them in this amount. The petition shows that the rights of the parties have already accrued and alleges no facts or circumstances showing that an adjudication of the plaintiff's rights is necessary to relieve her of the risk of taking any future undirected action incident to their rights, which action without judicial direction might reasonably jeopardize her interest. There being no allegations showing such risk of jeopardizing the plaintiff's rights, the petition as amended fails to state a cause of action for a declaratory judgment. Mendel v. Pinkard, 217 Ga. 562, 563 ( 123 S.E.2d 770); Phoenix Assurance Co. v. Glens Falls Ins. Co., 101 Ga. App. 530 ( 114 S.E.2d 389).
The trial court erred in overruling Travelers' demurrer and motion to strike the prayer for declaratory relief.
3. The defendants filed special demurrers and a motion to dismiss the petition on the ground that the plaintiff had in one count and in one action joined claims based on two entirely separate contracts against two entirely separate defendants. We recognize that an equitable action is maintainable for the purpose of preventing a multiplicity of suits. Nail v. Mobley, 9 Ga. 278; Smith v. Dobbins, 87 Ga. 303, 318 ( 13 S.E. 496). Joinder of defendants has been permitted in actions in equity "even if the petition concerns things of a different nature against several defendants whose rights are distinct, if it sets forth one connected interest among them all, centering in the point in issue in the case," Goodroe v. C. L. C. Thomas Warehouse, 185 Ga. 399 ( 195 S.E. 199), Harris v. Rowe, 200 Ga. 265, 269 ( 36 S.E.2d 787), and when "there is a common nexus in the whole transaction." Brumby v. Board of Lights Waterworks, 147 Ga. 592, 597 ( 95 S.E. 7); East Atlanta Land Co. v. Mower, 138 Ga. 380, 384 ( 75 S.E. 418); Todd v. Bivins, 215 Ga. 402, 403 ( 110 S.E.2d 768). We have found no decision that authorizes a plaintiff to sue defendants jointly in an action at law in circumstances like those shown in this petition. We construe this petition to be an action at law since it contains no prayer that the plaintiff's claims against the two defendants be consolidated in order to avoid a multiplicity of suits, or for other equitable relief. See Miller Co. v. Mattox, 118 Ga. 269, 270 ( 45 S.E. 237).
A misjoinder of parties or causes of action is not a ground of general demurrer but can be taken advantage of by special demurrer. Willingham, Wright Covington v. Glover, 28 Ga. App. 394, 395 ( 111 S.E. 206); Spence v. Rodgers, 61 Ga. App. 854 ( 7 S.E.2d 787).
The trial court erred in overruling the special demurrers on the ground of misjoinder.
4. The effect of the rulings in Divisions 2 and 3 is to render the summary judgment nugatory, and to make decisions on the other assignments of error unnecessary.
Judgment in Case No. 41024 reversed for the reason stated in Divisions 2 and 3; affirmed on the assignment of error discussed in Division 1.
Judgment in Case No. 41025 reversed for the reason stated in Division 3; affirmed on the assignment of error discussed in Division 1.
Judgments reversed in part; affirmed in part. Nichols, P. J., and Russell, J., concur.