Johnson v. General Exchange Insurance

Jenkins, P. J.,

concurring specially. I agree to the judgment rendered in this case, but do not concur in all that is said by my *785colleagues. The policy of insurance appears to have been issued upon an automobile sold under a conditional-sale agreement, and subject to two liens, one in favor of the vendor under its conditional-sale agreement, the other in favor of a company which appears to have advanced a portion of the purchase-money. The policy is made payable on its face to these three parties as their interests may appear. The suit as originally brought by the vendee was amended so as to be maintained both for himself and for the use of the vendor and the other lienholder, for the entire amount of the policy. Under the ruling of this court in Equitable Fire Insurance Co. v. Jefferson Standard Life Insurance Co., 26 Ga. App. 241 (105 S. E. 818), it does not appear that either the vendor or the other lien-holder could have maintained the suit for the total loss solely in its own name, even though it purported to act for the other parties covered by the policy; but inasmuch as the vendee holds the full title to the property subject merely to the payment of the portion of the purchase-money due to the vendor and the amount due to the other lienholder, I think that the action is maintainable by the vendee, suing for himself and for the use of the vendor and the other lienholder, and that these two lienholders need not be made parties plaintiff otherwise than has been done in this case. I do not think, however, as appears to be held from the language in the headnote and the opinion, that the action could be split and that each of the parties could maintain a separate action to the extent of his own individual interest in the policy on the theory that the policy is a several obligation. In Staten v. General Exchange Insurance Cor., 38 Ga. App. 415, 417, 418 (144 S. E. 53), this court declined to pass on the question which is now before it, but cited certain cases as perhaps throwing light thereon. From a consideration of these cases I do not think that it would be true that, where a policy of insurance is issued to two or more persons owning separate and independent interests in the property, an action on the policy could be maintained except by all the parties who together own the property. In this case, however, as I see it, the plaintiff as the vendee owns the full title to the property subject only to the payment of the liens securing the debts owed by him to the other parties named in the policy, with the result that he as the owner of the entire property, suing for himself and for the use of these lienholders for the *786full amount covered by the policy, is entitled thus to maintain bis suit.