ON PETITION FOR REHEARING The policy of insurance, which is the contract between the insurer and the insured, controlling the rights of the parties, did not provide that the use of semi-trailers must be declared upon and rated in order that the truck towing the same be insured against the liabilities stated in the policy, and consequently it was not necessary to have this semi-trailer declared upon and rated. The original opinion so held, and we adhere to that holding now.
The policy contained this provision:
"Any person or his legal representative who shall obtain finaljudgment against the assured because of any such injury or destruction may proceed against the Company under the foregoing terms of this policy, to recover the amount of such judgment, either at law or in equity, but not exceeding the limit of this policy applicable thereto." (Emphasis supplied.)
The petition for rehearing suggests that this provision gave the injured party a separate action at law against the *Page 820 insurer on the policy of insurance, and that garnishment would not lie. This contention is not sound. The quoted provision of the policy did not give the injured party a right to proceed directly against the insurer in the first instance, but gives the injured party the right to proceed against the insurer after the injured party has first obtained judgment against the insured. That is exactly what the injured party was doing by the institution of this garnishment proceeding. To further express the thought that the insurer could not be proceeded against by the injured party until after judgment had been secured against the insured, or the insured, insurer and injured party had agreed on the amount due, the following provision was also placed in the policy:
"No recovery against the Company shall be had until the amount of assured's obligation to pay shall have been finally determined either by judgment against the assured after actual trial or by written agreement of the assured, the claimant, and the Company, nor in either event unless suit is instituted within two years after the date of such judgment or written agreement."
There was a debt certain in amount, the judgment for $5,500.00, which the insured, the Gem City Builders' Supply Co., was obligated to pay the injured party, Samuel E. Poole, and against which liability the insured carried insurance evidenced by a policy of insurance issued by the defendant insurance companies to the insured. Therefore there was an obligation due from the insurer to the insured, to indemnify the latter from this liability, and garnishment was properly employed by the injured party.
The petition for rehearing states that the insurer did not defend the suit brought by the injured party against the insured in the lower court, because the insurer denied any *Page 821 liability for this accident, on the ground that the truck, at the time of the accident was being put to a use in violation of the provisions of the policy, and that the insured agreed, at that time, with this denial of liability. (The original opinion of this Court in this case held that there was not a violation of the particular provision of the policy in question.) From that asserted premise, the petition for rehearing reasons that the insured, by taking that position then, is estopped to assert now that there is an indebtedness due from the insurer to the insured, and that since the insured is estopped to assert this liability, the injured party is also estopped to assert that there is any liability on the part of the insurer. Such reasoning is fallacious, because the one who is asserting the liability of the insurer, namely, the injured party, has never taken any position other than that of asserting the liability of the insurer. The insured cannot, by its conduct, bind the injured party so as to estop him from asserting the liability of the insurer for the accident in question, because the interests of the insured and of the injured party are necessarily adverse and antagonistic to each other. Estoppel could not be imputed from the insured to the injured party under these circumstances.
The judgment of this Court in the original opinion contemplates that the court below should enter judgment against the proper party or parties defendant, as shown by the record. In so far as is shown by this record, it appears that the liability for the payment of this judgment is upon the Travelers Insurance Co.
Rehearing denied.
ELLIS, C.J., and WHITFIELD, TERRELL, BROWN, BUFORD, and CHAPMAN, J.J., concur. *Page 822