1. A petition for declaratory judgment must affirmatively show a present necessity for determination of a disputed issue in order to protect the plaintiff from insecurity respecting the propriety of some future act or conduct on its part which without such direction might reasonably jeopardize its interest. Where, as here, the petition of an automobile liability insurer seeking a declaration of its rights and an injunction against the prosecution of a pending damage suit until such judgment, sets up, a dispute only as to a fact situation involved in the collision out of which the pending death action arose, but under either the state of facts as contended for by it or that contended for by its insured it has an admitted duty to defend its named insured and another person in the same category, and under either state of facts it has a potential liability to pay as to judgments rendered against them, the petition fails to show any reason why the issues of fact so raised may not without jeopardy to the plaintiff be left for determination in or after the tort action and without delaying its prosecution.
2. Neither the petition nor the policy and the exclusionary endorsement as to any automobile driven by Russell Watson which is attached thereto shows on its face that the endorsement is invalid.
The United States Fidelity & Guaranty Co. filed an action for declaratory judgment in the Superior Court of Mitchell County in which it alleged that it insured the defendant L. E. Watson under the terms of an attached contract of automobile liability insurance; that the insured's son, the defendant Russell Watson and the defendant Robert Lee West, driving separate automobiles, were involved in a collision resulting in the death of the husband of Use defendant Mrs. Lucille Jones, who had filed a tort action against the Watsons and West, and that plaintiff had been requested by the primary insured to defend. Plaintiff alleges the policy covered the owned automobile, a 1961 Plymouth, and might provide excess coverage over the primary insurance carried by the defendant General Accident Fire & Life Assurance Co. on a non-owned substitute automobile, a 1957 Pontiac belonging to the defendant Willis Motor Sales, Inc., and loaned to the insured. The collision apparently occurred when both Russell Watson and West, driving these two cars illegally while drag-racing, collided with an automobile and caused fatal injuries to the husband of the plaintiff in the tort action. The insurer then alleged that Mrs. Jones, L. E. Watson and Robert Lee West all contend West was driving the Plymouth and Watson the Pontiac, whereas the true facts are that Watson was driving the Plymouth and West the Pontiac; that because of an endorsement on the insurance policy no insurance afforded by the policy in question would be applicable to any automobile driven by Russell Watson; that under the facts alleged in the tort action plaintiff would have a duty to defend as to the Plymouth driven by West but not as to the Pontiac driven by Watson, whereas under the true facts, Russell Watson being the actual driver of the Plymouth and excluded from coverage under the policy, plaintiff has no duty to defend as to the Plymouth, and its liability, if any exists, is that of an excess carrier as to the Pontiac. Plaintiff prays for a determination in this action of the fact that West was driving the Pontiac and Watson the Plymouth at the time of the collision; that the court enter judgment finding it has no liability to anyone by reason of the Plymouth being involved in the collision, and that its liability as to the Pontiac be determined to be that of excess carrier only.
The defendant General Accident Fire & Life Assurance Company filed a plea to the jurisdiction, plaintiff's demurrers to which were overruled. General demurrers of the defendant insurer were sustained., Thereafter motions to dismiss by the remaining defendants were sustained and the petition dismissed. These judgments are assigned as error.
1. It should first be noted that while this plaintiff alleges that the facts contended for by its insured are not true, it does not seek a judgment relieving it from defending the action on the ground of failure to cooperate or fraud but rather affirms the contract and admits that under either set of facts contended for some liability attaches to it--that of either a primary or an excess carrier. "Where no facts or circumstances are alleged in a petition for declaratory judgment to show any necessity for a determination of any dispute to guide and protect the petitioner from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to his alleged right, and which future action without direction might reasonably jeopardize his interest, such petition is subject to general demurrer." Phoenix Assurance Co. v. Glens Falls Ins. Co., 101 Ga. App. 530 (114 SE2d 389)
. See also Pinkard v. Mendel, 216 Ga. 487 (2) (117 SE2d 336)
and cases cited. "The courts will ordinarily refuse to entertain an action for a declaratory judgment as to questions which are determinable in a pending action or proceeding between the same parties." Carter v. State of Georgia, 93 Ga. App. 12 (2) (90 SE2d 672)
; Shippen v. Folsom, 200 Ga. 58
, 59 (7) (35 SE2d 915
). "Where a declaratory judgment as to a disputed fact would be determinative of issues, rather than a construction of definite stated rights, status, and other relations, commonly expressed in written instruments, the case is not one for declaratory judgment." 16 Am. Jur. 294, Declaratory Judgments, 20. It has been held that the remedy of declaratory judgment should not be invoked merely to try a disputed issue of fact involved in pending litigation. 68 ALR 119; Maryland Cas. Co. v. Consumers Finance Service of Pa., 101 F2d 514; Aetna Cas. &c. Co. v. Yeatts, 99 F2d 665; Standard Acc. Ins. Co. v. Leslie, 55 FSupp. 134.
The basic question at issue here is whether the plaintiff insurer has shown a controversy between itself and its insured of sufficient immediacy and reality to require the trial court to enjoin the pending tort action for whatever length of time it takes to determine the rights and liabilities of the insurance company under the facts stated. Where the insurer denies coverage and consequently seeks to relieve itself of its obligation to defend a pending suit against the insured there is such immediacy of choice imposed upon it as to justify and require the adjudication. St. Paul Fire &c. Ins. Co. v. Johnson, 216 Ga. 437 (117 SE2d 459)
. But where the only question at issue is whether the plaintiff is a primary insurer or only liable as an excess carrier, the petition shows no cause of action because it does not show that its action in the premises would jeopardize any of its rights. Phoenix Assurance Co. v. Glens Falls Ins. Co., 101 Ga. App. 530
, supra. Whether it be a primary or excess carrier, its obligation to defend its insured is the same. National Surety Corp. v. Dunaway, 100 Ga. App. 842 (112 SE2d 331)
. Had this plaintiff insured no automobile except the Plymouth this petition would show a cause of action for declaratory judgment because the question would be clearly coverage or no coverage, depending on whether or not Russell Watson was driving the Plymouth. But this plaintiff shows no controversy with its insured as to coverage, or as to the construction of the insurance policy. It admits that it must defend L. E. Watson and Robert West. It impliedly admits it must do this regardless of which factual situation exists. It admits that it is or may be liable for a judgment regardless of the disputed fact situation. It admits that no demand has been made upon it to defend Russell Watson, so there is no controversy as to either the coverage or the persons involved. The ultimate determination of the amount of its liability may be affected by this fact, but under Phoenix, supra, that fact does not entitle it to a declaration of rights now. What this plaintiff really seeks to know is not whether it should defend its insureds, but how it should defend them. There is some suggestion in the brief of counsel that this question is important to its present rights because if, for example, it defended West as the driver of the Pontiac and it developed on the trial of the damage suit that West was in fact the driver of the Plymouth, the liability of the insurer might be increased, and if it undertook a defense of the action against L. E. Watson generally it might later be estopped to contend that the exclusion clause relieving it of liability as to an automobile driven by Russell Watson remained effective.
"A liability insurer, which with knowledge of a ground of forfeiture or noncoverage under an insurance policy assumes and conducts the defense of an action brought against the insured, is thereafter estopped in an action upon the policy from asserting such forfeiture or noncoverage. However, the insurer may avoid the estoppel by giving timely notice fairly informing the insured that, notwithstanding its defense of the action, it disclaims liability and does not waive the defenses available to it against the insured." State Farm Mut. Auto. Ins. Co. v. Anderson, 104 Ga. App. 815 (123 SE2d 191)
. It is equally true that "if there are multiple grounds for the claim against the insured, some grounds being within policy coverage and some not, the insurer by defending the action on all grounds, is not estopped from asserting a defense under the policy against the insured if recovery against the insured is on a ground outside the policy coverage." 29A Am. Jur. 578, 1465. See also 38 ALR2d 1179; Kabinski v. Employers' Liability Assur. Corp., 123 N.J.L. 377 (8 A2d 605); Sweeney v. Frew, 318 Mass. 595 (63 NE2d 350); Putnam v. Employers Liability Assur. Corp., 90 N.H. 74 (4 A2d 353). That estoppel should not result where it is manifestly impractical to defend against the claim of the injured plaintiff without also undertaking a general defense on other issues, although they may not be within the terms of the policy, see Zaslow v. Hartford Acc. & Indemnity Co., 11 NYS2d 313.
Therefore, since the insurer has a duty to defend L. E. Watson and Robert Lee West in any event, and since the amount as well as the existence of its liability in this regard is one of the issues to be determined in the tort action, the defendant does not under either theory contended for show a present state of facts that an adjudication of its rights prior to the trial of the tort action is necessary to relieve it from the risk of taking undirected action which, without such direction, would jeopardize its interests. Pinkard v. Mendel, 218 Ga. 487, supra.
2. The petition alleges that plaintiff had in force a public liability policy on the 1961 Plymouth automobile belonging to L. E. Watson which specifically excluded coverage on the vehicle while being driven by Russell Watson and that "a copy of said insurance policy, together with endorsements attached thereto, with only the limits of liability in said policy and the premiums excluded therefrom" is attached to the petition. From the exhibit it appears the policy was issued on July 2, 1961, for a term of one year and that an endorsement signed by the insured showing effective date of August 1, 1961, was attached reading as follows: "It is agreed that such insurance as is afforded by the policy does not apply to any automobile while operated by Russell Watson." No premium payment charges appear on either the policy or the endorsement. No demurrers were filed before the appearance day, but some time thereafter defendants moved to dismiss the petition on the ground no cause of action was set out. It is contended that the action of the trial court dismissing the petition is also correct for the reason that the endorsement was attached after the insurance contract was issued, was without any consideration, and was therefore invalid to operate as a modification of the original contract of insurance under which, without the endorsement, Russell Watson would have been an insured if operating either automobile under the facts alleged in the petition in the tort action.
It is obvious that, although the petition fails to show the particular consideration, if any, for the endorsement which was added by agreement of the contracting parties, neither does it show any facts authorizing the inference that it was in fact without consideration. There is a general allegation that the contract was "in force" and that it included the provision in question, which it could not do if such provision was itself invalid. The question presented is not whether the plaintiff's petition is perfect in matter of form but whether it is so lifeless that had there been a trial on the merits without any demurrer or motion, a motion in arrest of judgment would thereafter lie because no cause of action was set out. Kelly v. Strouse, 116 Ga. 872 (43 SE 280)
; Gunby v. Turner, 194 Ga. 378
(2, 5) (21 SE2d 640
). " 'To be subject to general demurrer, a petition must be utterly lifeless.' . . . While a plaintiff's petition on demurrer thereto will be construed most strongly against him, yet it must be construed as a whole (Thomson Development Co. v. Crutchfield, 161 Ga. 448
, 131 SE 154
); and the final test of the sufficiency of a petition to withstand a general demurrer is whether the defendant can admit all that is alleged therein and at the same time escape liability altogether." Johnson v. John Deere Plow Co., 214 Ga. 645
, 647 (106 SE2d 901
). Where a petition has all the requisites to make it good in substance save that it omits to allege some fact essential to raise the duty involved in the cause of action which the pleader evidently intended to declare upon, it is amendable by supplying the omitted fact; therefore, such an omission "being an amendable defect and therefore, not such as a verdict would fail to cure or such as would authorize a motion in arrest of judgment . . . did not render the petition subject to be dismissed on motion." Harris v. A. C. L. R. Co., 25 Ga. App. 835 (1) (104 SE 924)
Acknowledging that a modification of an insurance policy which deprives one party of a valuable right without any corresponding benefit to him or detriment to the opposite party would be invalid, and assuming without deciding that a consideration would be necessary to the validity of the endorsement, nothing in the petition affirmatively shows a lack of consideration so as to render it dismissible on motion made on the sole ground that no cause of action is set out. "A contract . . . will not be held invalid on demurrer, unless the invalidity appears upon its face." Allen v. Sams, 31 Ga. App. 405 (1) (120 SE 808). The ruling in Davis & Co. v. Morgan, 117 Ga. 504 (43 SE 732, 61 LRA 148, 97 ASR 171) involved a question not of pleading but of evidence. In Slaten v. College Park Cemetery Co., 185 Ga. 27 (193 SE 872) examination of the record reveals that a timely special demurrer was filed on the ground that an amendment to the answer "attempts to set forth a subsequent agreement between plaintiff and defendant and [to] allege satisfaction of such contract, which subsequent agreement is not based upon any new or valuable consideration." Had such a special demurrer appeared in this record a different question would be presented, but, as against a general motion to dismiss, the petition cannot be held to show on its face that the endorsement was invalid.
The trial court did not err in dismissing the petition as to all defendants.