Cotton States Mutual Insurance Company v. Dozier

101 Ga. App. 573 (1960)

114 S.E.2d 453

COTTON STATES MUTUAL INSURANCE COMPANY v. DOZIER.

38159.

Court of Appeals of Georgia.

Decided May 2, 1960.

Robert Edward Surles, Dunaway, Embry & Shelfer, John A. Dunaway, for plaintiff in error.

Cook & Palmour, A. Cecil Palmour, contra.

CARLISLE, Judge.

This case was a suit brought by the plaintiff, a member of the general public, to recover on account of injuries inflicted by the negligent operation of the school bus. The defendant insurance company carried liability insurance issued to the Walker County Board of Education covering the operation of certain listed motor vehicles, including the school bus involved in the accident giving rise to this action. The defendant filed general demurrers to the petition, which the trial court overruled, and the exception here is to that judgment. The question presented by the writ of error to this court on the exception to the overruling of the general demurrer is the same as the question presented in Cotton States *574 Mut. Ins. Co. v. Keefe, 100 Ga. App. 715 (112 S. E. 2d 435). That case was reversed by the Supreme Court, (see Cotton States Mut. Ins. Co. v. Keefe, 215 Ga. 830, 113 S. E. 2d 774), the court holding in effect that the provisions of a policy of insurance in paragraph 7 thereof that, "no-action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company," is a binding and enforceable provision limiting the right to sue the insurance company. Under that ruling the petition in this case, not alleging that an agreement had been entered into or that plaintiff had previously recovered a judgment against the Walker County Board of Education on account of the automobile accident referred to therein, was subject to general demurrer and the trial court erred in overruling the same.

Judgment reversed. Gardner, P. J., and Townsend, J., concur.