Simmons v. AMERICAN SECURITY INSURANCE COMPANY , 107 Ga. App. 364 ( 1963 )

107 Ga. App. 364 (1963) 130 S.E.2d 351

SIMMONS
v.
AMERICAN SECURITY INSURANCE COMPANY.

39980.

Court of Appeals of Georgia.

Decided February 18, 1963.

Lucian J. Endicott, for plaintiff in error.

Powell, Goldstein, Frazer & Murphy, Robert R. Harlin, James K. Rankin, contra.

RUSSELL, Judge.

Where by the terms of a contract of motor vehicle insurance the loss is payable to the named insured and a named mortgagee loan company "as interest may appear," the insured may not, over timely special demurrer, sue in his own name to recover the loss to the exclusion of the mortgagee. He may in the first instance join the mortgagee as party, Georgia Cas. &c. Co. v. Pincus, 89 Ga. App. 836 (81 SE2d 527), or he may maintain the action for his own use and the use of the mortgagee. Johnson v. General Exchange Ins. Corp., 49 Ga. App. 780 (176 S.E. 840). But an amendment merely calling upon the mortgagee, who is not a party, to intervene in the pending suit is not a compliance with either method.

A timely special demurrer having been filed raising the issue of nonjoinder of necessary parties, and the plaintiff having failed to amend to cure the defect, it was not error thereafter to dismiss the petition.

Judgment affirmed. Felton, C. J., and Eberhardt, J., concur.