Citizens Bank v. Fidelity & Deposit Co. of Maryland

119 S.E. 518, 156 Ga. 581, 1923 Ga. LEXIS 276

• Court: Supreme Court of Georgia
• Decided: October 9, 1923
• Docket: No. 3670
• Status: Published

Opinion

Atkinson, J.

The ruling announced in the first note results • from a construction of the pertineiit clauses of the entire contract. The excerpts quoted are from paragraphs seven and eight of the contract, and follow immediately in the order indicated. The thing which the contract provided should be apportioned between the insured and the indemnitor was “any recovery.” The only right of recovery that either would have would be against the employee or his estate. Neither would have a right to “reimbursement” as against a stranger. In tbe circumstances a voluntary ’payment to the insured by a stranger who owed no duty to the in- ^ demnitor or the insured would be outside of the contract for apportionment. In the cases of Belgium State Bank v. Maryland Casualty Company, 177 Wis. 1 (187 N. W. 667), and Alabama Fidelity & Casualty Co. v. Alabama Penny Savings Bank, 200 Ala. 337 (76 So. 103), the money received by the insured was from the estate of the employee.

The rulings announced in the second and third notes do not require elaboration. Judgment reversed.

All the Justices concur.