1. The right of the plaintiff to require contribution from the Atlanta Car-for-Hire Association, Inc., is dependent upon the question of whether or not the provisions
"No permit to operate a Car-for-Hire shall be issued or continued in operation unless the holder thereof shall give bond with adequate security with limits of liability in the amount of ten thousand dollars for bodily injury to each person and twenty thousand dollars for each accident and five thousand dollars baggage and property damage liability for the protection of passengers and baggage and the public against injury or damage proximately caused by the negligence of such Car-for-Hire, its servants and agents; and such bond shall be approved by the Police Committee and deposited with the Mayor and be for the benefit of and subject to suit by action thereon by any person who shall sustain actionable injury or loss protected thereby. The Police Committee may in its discretion allow the holder of such permit to file in lieu of such bond a policy of indemnity insurance in some indemnity insurer, which policy shall substantially conform to all of the provisions hereof relating to bonds, and shall likewise be approved by the Police Committee and deposited with the Comptroller . . . the Atlanta Car for Hire Association, Inc., to give a bond in substantially the form hereto attached, which shall be sufficient compliance by the members of said association with the ordinance hereby amended."
The bond as executed on November 10, 1948, by the Atlanta Car-for-Hire Association, Inc., recited that such association was bound unto the Mayor of the City of Atlanta for the benefit of all concerned in the just and full payment of $25,000, the condition of the obligation being: "Whereas, members of the Atlanta Car-for-Hire Association, Inc., hold permits with the City
"Now, therefore, should each and all such members of Atlanta Car for Hire Association, Inc., pay any and all judgments which may be finally rendered against them, or either of them, upon the rendition of any such final judgment, then, this bond to be void; otherwise, of full force and effect."
The bond as required by the ordinance and executed by the association is one that insures against liability, and is not a contract of indemnity. Hodges v. Ocean Accident &c. Corp., 66 Ga.App. 431 (18 S.E.2d 28); Associated Indemnity Corp. v. McAlexander (Tenn.), 79 S.W.2d 556; Continental Auto Ins. Underwriters v. Menuskin, 222 Ala. 370 (132 So. 883). Liability accrues on the occurrence of the injury or event on which the liability depends, and does not depend on the recovery of a judgment against the insured, which if recovered relates back to the date of the injury. Hocken v. Allstate Ins. Co., 235 Mo. App. 991 (147 S.W.2d 182); Pennsylvania Casualty Co. v. Phoenix, 139 Fed. 2d 823; Ross v. American Employers' Liability Ins. Co., 56 N. J. Eq. 41 (38 Atl. 22).
It will be seen from the ordinance and bond that neither of them expressly or impliedly provided for retrospective operation, but contemplated the giving of bond and liability thereunder for accidents occurring in the future. The ordinance provided that no permit to operate a car for hire shall be issued or continued
Counsel for the parties cite no decision of this court or the Court of Appeals, nor have we found any, which involved the question here posed. In our search of the authorities from other jurisdictions we have found only two cases where the question and factual situation were the same as in the instant case. Both of these cases sustain us in our view that the bond in question did not cover accidents occurring before the execution of the bond. In Manheim v. Virginia Surety Co., 215 N.C. 693 (3 S.E.2d 16), it appeared that the City of Greensboro had passed an ordidance on July 27, 1937, providing for the filing of a security bond by taxicab operators as a condition precedent to operating any taxicabs on the streets of Greensboro. The bond, executed on November 23, 1937, required the guarantors to pay any fixed judgment that may be rendered against the named taxicab operator for any personal injury or property damage for which the operator may be held liable at the instance of all persons. Manheim sued the taxicab operator for personal injuries sustained on June 19, 1937, and judgment was rendered in March, 1938. It was held that the indemnity bond, having been executed subsequently to the date when the plaintiff was injured, was not subject to the judgment rendered. In Nunnery v. Baker, 188 Miss. 596 (195 So. 314), it was held that a bond to satisfy
Since neither the ordinance nor the bond has application, and since the liability as against the Atlanta Car-for-Hire Association, Inc., is based solely on the ordinance and bond, and the prayers for relief against James and the City of Atlanta are based upon the alleged right of the plaintiff to call upon the association for contribution, it follows that the trial judge did not err in sustaining the ground of the general demurrers of the defendants Atlanta Car-for-Hire Association, Inc., and L. A. James and the City of Atlanta, which asserted that the petition did not set forth a cause of action as against them. Though the trial court sustained other grounds of these demurrers, it is unnecessary, in view of the above ruling, to pass upon the contention that it was error to sustain other grounds of these general demurrers.
2. The only question left in the case is whether or not the allegations of the petition were sufficient to show that the plaintiff is entitled to call upon the defendants Anderson and McGriff each to contribute, as their pro rata share in satisfaction of the judgment of Mrs. Meisel, one-fourth of the amount of the judgment, it being alleged that these individuals are partners doing business under the trade name of Anderson-McGriff Company, and together had contributed one-third thereof. The plaintiff insists that the judgment was against Anderson and Mrs. McGriff
Code §§ 37-303 and 105-2012, which give a right to one tortfeasor who has paid more than his share to call upon other tortfeasors for contribution, do not lay down any rule as to how an apportionment should be made where one of the defendants is a partnership. Counsel in this case have not cited any authority in this State which deals with the assessment of a pro rata part as against joint tortfeasors where one of the parties was a partnership doing business under a trade name. Counsel for Anderson and McGriff cite decisions from other jurisdictions which sustain them in their position, one being Wold v. Grozalsky, 277 N.Y. 364 (14 N.E.2d 437, 122 A. L. R. 518). In that case, the plaintiff sustained injury by reason of negligence on the part of the owners of two adjoining buildings, one of which was owned by one individual and the other was owned by two individuals. The plaintiffs recovered a judgment against the three owners of the buildings in a negligence action. The defendant who was the owner of one of the buildings brought an action seeking to require the other two defendants, owners of the other building, each to pay one-third of the judgment. The court held that the two defendants should be required jointly to pay only one-half of the judgment. In the opinion, the court said (at p. 367): "To divide the amount of the judgments among the number of defendants in the case at bar also would work injustice. The negligence was passive, not active. The liability arose out of the ownership of the houses. Under such circumstances it is inequitable to saddle the owners of one house with two-thirds of the judgment and allow the owner of the other house to escape with payment of only one-third. The unfairness of such a decision becomes more evident if we consider a hypothetical
Judgment affirmed. All the Justices concur.