Nichols v. Ocean Accident & Guarantee Corp., 30190.

• Decision Date: 09 October 1943
• Docket Number: No. 30190.,30190.
• Citation: 27 S.E.2d 764
• Parties: NICHOLS. v. OCEAN ACCIDENT & GUARANTEE CORPORATION.
• Court: Georgia Court of Appeals

27 S.E.2d 764

NICHOLS.

v.OCEAN ACCIDENT & GUARANTEE CORPORATION.

No. 30190.

Court of Appeals of Georgia,

Division No. 2.

Oct. 9, 1943.

Rehearing Denied Nov. 20, 1943.

Error from Superior Court, Floyd County; C. H. Porter, Judge.

Garnishment proceedings by Mary Nichols against Ocean Accident & Guarantee Corporation based on a judgment held by plaintiff against one Herman Johnson. Defendant's demurrer to plaintiff's traverse of defendant's answer denying indebtedness to Herman Johnson was sustained, and plaintiff brings error.

Judgment reversed.

James Maddox, of Rome, for plaintiff in error.

Matthews, Owens & Maddox, of Rome, for defendant in error.

Syllabus by the Court.

1. A "customer" may be defined as "one who regularly, customarily, or repeatedly makes purchases of, or has business dealings with, a tradesman or business establishment; a buyer or purchaser, a patron." "A buyer, purchaser, or patron; a person with whom a business house, or business man, has regular or repeated dealings."

2. The provision in a policy of insurance issue to a motor company insuring its customers while riding in or operating a motor vehicle of the motor company against liability for damages to third parties, includes a person, who had an arrangement with the motor company whereby he was regularly and repeatedly furnished an automobile and six gallons of gasoline a week to be used by him in calling upon and locating prospective purchasers of automobiles from the motor company and who had procured more than 125 prospects who had purchased automobiles from the motor company in the 25 months' period next preceeding the automobile accident in which such person was involved while driving one of the automobiles of the motor company by its permission under the arrangement just referred to, such person not being an employee of the motor company, but receiving commissions on the sales of automobiles by the motor company to purchasers procured by him as compensation for his services in this connection, and which automobile accident caused the death of the plaintiff's son.

3. The plaintiff's traverse was not subject to demurrer on the ground that it was inconsistent and contrary to the position taken by the plaintiff in her suit against the defendant Johnson and the G. L. Hight Motor Company.

4. The court erred in sustaining the demurrer to the plaintiff's traverse.

SUTTON, Judge.

The plaintiff sued Herman Johnson and the G. L. Hight Motor Company for damages for the death of her son; a judgment was recovered against Herman Johnson; the plaintiff caused summons of garnishment to be served upon the Ocean Accident & Guarantee Corporation, basing the garnishment upon the judgment held by her against Herman Johnson; the garnishee answered and denied that it was indebted to Herman Johnson in any amount; the plaintiff traversed this answer, and set out that the garnishee was indebted to Herman Johnson by reason of the fact that it issued to G. L. Hight Motor Company a policy of insurance designated "Garage Liability Policy UD 30615, " which contained, among other provisions, the following "In consideration of an additional premium of $71.50 it is understood and agreed that the undermentioned policy is extended to cover the liability of any customers of the named assured while riding in or operating any motor vehicle owned by the named assured and covered under this policy except a motor vehicle which such customers may be purchasing from the assured on the installment plan;" that on February 3, 1939, her son was killed by an automobile driven by Herman Johnson, and as a consequence thereof she had sued him and recovered a judgment against him for $3,500, of which no part had been paid; that at the time her son was killed and for a long time prior thereto Herman Johnson had had an arrangement with the G. L. Hight Motor Company whereby he negotiated for the sale of new and used cars to any prospective purchasers he might secure, and received commissions on all automobiles sold by the motor company to prospects secured by him; that he received no salary from the motor company, and it had no right to direct his movements, except that he was required to attend a meeting of the salesmen each day; that he came and went as he pleased, and sought prospects wherever he could locate them, and at such times as suited his convenience; that he had no right to conclude a sale, or make any agreement as to partial payments or as to the value of any car traded in on the purchase price; that he in no way represented the motor company, but merely received a commission onall automobiles sold to prospects furnished by him; that the motor company furnished him with an automobile and six gallons of gasoline a week to be used by him in calling upon and locating prospective purchasers; that during the year 1937 he produced 75 persons who purchased automobiles from the motor company on which he received a commission and during the year 1938 he produced 51 persons who purchased automobiles from the motor company on which he received commissions, and that he also brought certain persons to the motor company during January and February of 1939, who purchased automobiles for which he was entitled to receive a commission; that he never kept the same automobile for more than two or three weeks, when it was taken from him by the motor company and replaced with another, and that he constantly used said automobile in his search for and contacts with prospective purchasers of automobiles and about his own affairs; that at the time he struck and killed the plaintiff's son he was driving and operating an automobile belonging to the motor company furnished him under the understanding and agreement above set out and with full knowledge and consent of the motor company; that by reason of the facts set out and under the terms of the insurance policy that the garnishee was obligated to pay the judgment held by her and was indebted to Herman Johnson in that amount. The plaintiff attached as exhibits to her traverse copies of the petition filed by her against Herman Johnson and G. L. Hight Motor Company, wherein she alleged that at the time her son was killed Herman Johnson was the salesman and agent and employee of the motor company, and was acting within the scope of his employment, and copies of the answers of the two defendants in which each denied the above allegations.

The garnishee demurred to the traverse upon the grounds (1) that the allegations of the traverse fail to show that the garnishee was indebted to Herman Johnson; (2) that under the allegations of the traverse...