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Lawskills.com Georgia Caselaw
AMERICAN SOUTHERN INSURANCE COMPANY v. KIRKLAND et al.
43781.
Declaratory judgment. Tattnall Superior Court. Before Judge Caswell.
HALL, Judge.
The insurer appeals from an order of the trial court dismissing its petition for declaratory relief upon the ground that the "complaint failed to state a cause of action [claim for relief] against the defendants upon which the relief sought might be granted."
The appellees rely upon Pennsylvania Threshermen &c. Cas. Co. v. Gardner, 107 Ga. App. 472 (130 SE2d 507), and Hatcher v. Georgia Farm Bureau Mut. Ins. Co., 112 Ga. App. 711 (146 SE2d 535). These cases are inapposite for the reason they were decided under the old strict rules of pleading. A claim for relief under Code Ann. 81A-108 "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U. S. 41, 45-46 (78 SC 99, 2 LE2d 80). See also Harper v. DeFreitas, 117 Ga. App. 236 (1) (160 SE2d 260).
The trial court erred in dismissing the petition. St. Paul Fire &c. Ins. Co. v. Johnson, 216 Ga. 437 (117 SE2d 459); Ditmyer v. American Liberty Ins. Co., 117 Ga. App. 512 (1) (160 SE2d 844).
William T. Darby, Sr., John P. Rabun, B. Daniel Dubberly, Jr., for appellees.
Doremus & Karsman, William Green, Ogden Doremus, for appellant.
ARGUED JULY 2, 1968 -- DECIDED JULY 15, 1968.
Friday May 22 18:15 EDT


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