Nalley Discount Co. v. Queen Insurance Co. of America

Gardner, Presiding Judge. Code § 81-304 provides: “A demurrer denies the right to the relief sought, in whole or in part, admitting all properly pleaded allegations in the petition to be true, and is founded either upon the want of jurisdiction in the court, or of right in the petitioner, or upon the nonjoinder or misjoinder of parties or causes of action, or the absence of liability by the defendant to the petitioner. Special defects or omissions in the petition may always be taken advantage of by demurrer; and unless cured by amendment the petition shall be dismissed.” A misjoinder or nonjoinder of parties plaintiff or defendant is ground for special demurrer. However, failure to name a necessary or indispensable party leaves the court without jurisdiction. Sowell v. Sowell, 212 Ga. 351 (92 S. E. 2d 524). The allegations of said petition, if true, (and the case is in this court on demurrer), would show the defendant insurance company liable to the plaintiffs for the penalty and reasonable counsel fees as provided for in Code § 56-706. We have read carefully the decisions cited by counsel for the defendant. After studying these decisions we are still of the opinion that (a) since the Nalley Discount Company was 'shown as an insured under the policy covering the car which was damaged, the interest of Nalley Discount Company being '¡shown in the policy such as it might appear when and if any damage occurred, Nalley Discount Company, the loss payee, should have been notified of the cancellation of the policy; and (b) since Armstrong had appointed Nalley Discount Company his due and lawful attorney in fact, the notice of cancellation should have been sent to the Nalley Discount Company as well [778] as to Armstrong. There is nothing in any of the cases cited by counsel for the insurance company to contravene this contention. It follows that the policy was in force on October 10, 1957, when the damage was caused by the accident covered by the policy. The following cases cited by the insurance company are not applicable to the case at bar: Genone v. Citizens Ins. Co. of N. J., 207 Ga. 83 (60 S. E. 2d 125); Southern States Fire &c. Ins. Co. v. Napier, 22 Ga. App. 361 (96 S. E. 15); Sheppard v. State, 26 Ga. App. 241 (105 S. E. 736); and Saint Paul Fire &c. Ins. Co. v. C.I.T. Corp., 55 Ga. App. 101 (189 S. E. 390). Counsel for the insurance company has failed to differentiate the cases cited by counsel for the plaintiff sufficiently to prevent those cases from sustaining the position here held, nor do we discern any inapplicability. The petition as recast was not subject to dismissal on general demurrer, and the court erred in sustaining the general demurrer and dismissing the petition. Judgment reversed. Townsend and Carlisle, JJ., concur.