HEAD, Justice.
This case is controlled by the decision of this court in United States Casualty Co. v. Watkins, ante, p. 619.
Judgment reversed. All the Justices concur, except Duckworth, C. J., and Candler, J., who dissent. Hawkins, J., concurs in the judgment only.
ARGUED MAY 10, 1955 — DECIDED JUNE 13, 1955.
HEAD, Justice.
Massachusetts Bonding Insurance Company filed an action against Charles E. Burton, The General Accident Fire Life Assurance Corporation, Ltd., and Fletcher Hulen Pass, Sr. From the petition, as amended, it appears that: The defendant Pass was an employee of Brink's, Inc., and the petitioner is the insurer of Brink's, Inc., under the Workmen's Compensation Act. While the defendant Pass was discharging duties in the course of his employment, he was struck by an automobile driven by the defendant Burton, and received injuries resulting in total disability. The petitioner has made a settlement of its liability under the Workmen's Compensation Act in the sum of $9,150. The defendant Pass has filed a suit against Burton, seeking to recover damages for his injuries. The defendants Pass and Burton are insolvent. The General Accident Fire Life Assurance Corporation, Ltd. is liable under its policy issued to the defendant Burton in the sum of $5,000. Unless a court of equity intervenes, the damage suit will be settled for $5,000, which will destroy the petitioner's equitable right of subrogation under Code § 114-403.
The petitioner prayed for a temporary and permanent injunction to enjoin a settlement between Pass and Burton, and for other relief.
Counsel for the defendant Pass made an oral motion in the nature of a general demurrer to strike and dismiss the petition. The motion was overruled and the exception is to this judgment.