Opinion
34969.
DECIDED MAY 4, 1954.
Action for damages. Before Judge Whitman. Fulton Superior Court. October 16, 1953.
Casper Rich, for plaintiff in error.
Nall, Sterne Miller, contra.
The petition, alleging that the plaintiff, an employee of a named motor common carrier, was injured as a result of the concurring negligence of the carrier and of another employee of the carrier, when a truck owned by the carrier and driven by the plaintiff collided on a public highway of this State with another truck of the carrier driven by the other employee, did not state a cause of action against the insurance company which insured the carrier under a policy issued by the defendant insurance company to the carrier in lieu of a bond, under the provision of Code § 68-612 and the trial court did not err in sustaining the general demurrer of the insurance company, and in dismissing the action as to that defendant.
DECIDED MAY 4, 1954.
Lee Combs sued A. J. Williams and Carolina Casualty Insurance Company for damages for personal injuries. Carolina Casualty Insurance Company demurred generally and specially to the petition as amended. The trial court sustained the general demurrer and dismissed the action as to the insurance company, and the exception here is to that order.
The petition alleged in substance: that the defendant Williams was an agent or employee of Benton Rapid Express, a motor common carrier operating over the highways of the State of Georgia, he being a truck driver for the said carrier; that the carrier, in compliance with the laws of Georgia and for the protection of the public against injuries caused by its servants and employees, offered to and had approved by the Georgia Public Service Commission a policy of insurance issued by the defendant company; that the defendant Williams has injured and damaged the plaintiff in the sum of $20,000; and that Williams and the defendant insurance company are jointly liable to the plaintiff in that amount by reason of the facts alleged; that the plaintiff at all times referred to in the petition was an agent or employee of the carrier; that, on the date of the injury complained of, the defendant Williams was operating a tractor-trailer motor truck of the carrier eastward along U.S. Highway No. 80, near Twin City, Georgia, said operating being in the course of the business of the carrier at that time; that the said Williams, in violation of certain laws of Georgia stopped the said truck on the highway so as to completely block the right side of the highway; that Benton Rapid Express was guilty of certain negligent acts in failing to have the said truck driven by Williams properly lighted, and that Williams negligently failed to place warning flares or lanterns in the highway so as to warn travelers of the presence of the truck; that the truck operated by Williams had been stopped on the highway, as aforesaid, about 10 minutes, when the plaintiff, driving another of the carrier's trucks eastwardly along said highway, approached the point and ran into the rear of the said parked truck, said collision inflicting the injuries for which the plaintiff sued.
The question presented by this case is whether the word "public" as used in Code § 68-612, providing for the giving by motor common carriers of indemnity bonds or insurance policies in lieu of bonds for the protection of the "public", is broad enough to include a fellow servant of an agent or servant of a motor common carrier so as to make the surety on a bond, or the insurance company issuing a policy of insurance in lieu of bond, liable to such servant injured as a result of the concurring negligence of his fellow servant and of the employer, as alleged in this case. Upon a careful consideration of the pertinent statutes and decisions, we have concluded that the insurance company is not liable under the circumstances alleged.
The determination of the question what the word "public" as used in Code § 68-612 means depends on a construction of the section as a whole. Even if the word "public" is broad enough to include the fellow servant of an agent or servant of a motor common carrier, it does not mean that the bond, or indemnity insurance policy given in lieu of bond, covers a servant of the carrier because the section states that the bonds (and insurance) shall be for the benefit of any person who shall sustain "actionable injury" or loss protected by the bond or insurance. "Actionable injury" means an injury to a person who could sue the carrier and obtain a judgment for the injuries sustained. Under the laws of Georgia, of which the General Assembly knew when it wrote and amended the act now embodied in the Code section referred to, a master is not liable for damages for the negligence of a fellow servant generally, and if a case is such that a master is so liable at common law generally the master would not be subject to suit and judgment if the carrier and employee came under the Georgia Workmen's Compensation Act. The plaintiff in error concedes in this case, and rightly so, that in no event, because of what has just been stated, could he have successfully sued the carrier, his master. Since that is true, if the carrier had executed a bond, there would have been no way for the plaintiff in error to recover thereon, because he could not have recovered a judgment against the surety for the reason that he could not have recovered a judgment against the principal for the reasons above stated. Gartrell v. Johns, 15 Ga. App. 671 ( 84 S.E. 175). See also Maryland Casualty Co. v. Dobson, 57 Ga. App. 594, 597 (2) ( 196 S.E. 300). Since the plaintiff in error would have had no recourse against the surety under the bond, he has none under the indemnity insurance policy because it is not logical or reasonable to think that the legislature intended to preclude a servant's recovery under a bond and to allow it under an alternative indemnity provision. If this were not true, the law would not be uniform, and the words "actionable negligence" in the Code section would have a double meaning depending on whether a bond or an insurance policy is involved. Another reason why "actionable negligence" means actionable negligence for which the carrier is subject to suit and judgment is the amendments to the act embodied in the Code section, providing that the carrier and its surety or the carrier and its insurance carrier may be joined in the same action. If the Code section means what the plaintiff in error contends, surely the legislature would have provided that (if the carrier could not be sued) the injured person could join the negligent servant and the insurance carrier, if there was one.
In view of what is said above, the trial court did not err in sustaining the general demurrer of Carolina Casualty Insurance Company, and in dismissing the action as to it.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.