American Cas. Co. v. Crain-Daly Volkswagen, Inc.

• Decision Date: 06 September 1973
• Docket Number: 2,3,CRAIN-DALY,Nos. 1,No. 48034,48034,s. 1
• Citation: 129 Ga.App. 576,200 S.E.2d 281
• Parties: AMERICAN CASUALTY COMPANY v.VOLKSWAGEN, INC
• Court: Georgia Court of Appeals

Page 281

200 S.E.2d 281

129 Ga.App. 576

AMERICAN CASUALTY COMPANY v. CRAIN-DALY VOLKSWAGEN, INC.

No. 48034.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Sept. 6, 1973.

Gambrell, Russell, Killorin, Wade & Forbes, David A. Handley, Robert B. Wedge, Atlanta, for appellant.

Harland, Cashin, Chambers & Parker, Harry L. Cashin, Jr., Atlanta, for appellee. Syllabus Opinion by the Court

CLARK, Judge.

As this marks the fourth time in the short space of six years that our court has been called upon to decide a coverage question under a standard 'messenger theft policy,' insurers might well consider clarifying their contracts. In fact, when one considers the number of litigated cases from other jurisdictions on this matter and their diversity of decisions on similar facts it becomes 'curiouser and curiouser' (from Alice in Wonderland) that such revision has not heretofore occurred.

Our three previous cases are Cleveland Avenue Liquor Store, Inc. v. Home Insurance Co., 115 Ga.App. 864, 156 S.E.2d 202, Atlanta Tallow Co. v. Fireman's Fund Insurance Co., 119 Ga.App. 430, 167 S.E.2d 361, and Hawkins Iron & Metal Co. v. Continental Insurance Co., 128 Ga.App. 462, 196 S.E.2d 903. It is significant that the briefs filed in the last case argued similarly to those presented in the instant appeal, namely: the insured in each instance pleads their facts come within the Atlanta Tallow Co. case while the insurer contends their situation comes within the Cleveland Avenue Liquor Store, Inc. ruling. Our Hawkins Iron and Metal Co. opinion applied neither of the two precedents and instead ruled that even though the monetary receipts were stolen from the locked glove compartment of the insured's locked truck that the facts there constituted a 'storage situation' rather than one in which the money was 'being conveyed by a messenger.' The decisive item constituting the ratio decidendi was the fact of the vehicle being parked for an overnight period as contrasted with the ten minute interval which existed in the Atlanta Tallow Co. case.

The Cleveland Avenue Liquor Store case ruled that 'a loss of money in a zippered plastic case left on the front seat of an unlocked car parked by the messenger in front of his house while he took time to eat lunch is not covered' under the 'messenger conveyance' and 'care and custody' provisions. This court undertook in the Atlanta Tallow Co. case to discuss the Cleveland Ave. Liquor Store ruling in four separate opinions. Judge Eberhardt who had written the Cleveland Ave. decision dissented on the basis that his initial opinion had 'concluded that the protective care and custody of money contemplated by the contract is actual personal possession by the messenger.' 119 Ga.App. 430, 436, 167 S.E.2d 361, 365. The special concurrences written respectively by Judges Deen and Hall did not accept this conclusion. Judge Deen's special concurrence joined in by three judges suggested 'the practical necessity of overruling it (the Cleveland Ave. case).' P. 433, 167 S.E.2d p. 363. But Judge Hall, who had concurred in that case did not agree that the prior decision should be overruled. Instead his concurring opinion joined in by two judges differentiated the Cleveland Ave. case on its facts. This factual differentiation was that 'The money was still in the messenger's protective custody (locked glove compartment of a locked car) during a 10 minute interval while in the process of being conveyed.' P. 435, 167 S.E.2d p. 364.

The holding of the Atlanta Tallow Co. case as expressed in the opinion concurred in by eight judges with only one dissent is that coverage exists under such an insurance contract occurring during a ten-minute interval from a locked company vehicle used by the employee authorized to transport company funds. The headnote recites it was 'error to grant summary judgment for the defendant insurer under either a theory that the money was not being 'conveyed' or that it was not in the 'custody' of the employee at the time of theft.'

The three previous decisions were on summary judgments. In the present case the appeal is from a judgment based upon a jury verdict. Plaintiff's testimony brought the case within the ambit of the Atlanta Tallow Co. decision whereas the version from defendant insurer's witnesses fitted it to the Cleveland Ave. Liquor Store ruling. Plaintiff's employee testified that the theft occurred from a locked company vehicle during a brief stop to check some auto parts for his employer during the return trip from the bank. This was contradicted by the insurer's adjuster who had procured a signed statement from the employee that the left front door had been left unlocked which assertion was confirmed by the Atlanta detective investigating the crime. The employee explained that his illiteracy had prevented him from reading the written document and he denied having so informed the officer, he insisting that he had told them all doors were locked but that upon his return the left hand door was unlocked.

In reliance upon the Cleveland Ave. case the insurer moved for directed verdict in its behalf. Its counsel argued then and also urged in our court that the facts presented by the insurance adjuster and the city detective brought the case within the Cleveland Ave. Liquor ruling. Since, however, the sworn testimony of the employee was similar to the facts of the Atlanta Tallow Company case the trial judge correctly ruled that the contradiction in the two versions was for determination by the jury.

The insurer then made two written requests to be included in its charge to the jury which requests were based upon the Cleveland Ave. opinion. Both of these written requests were denied.

The jury returned a verdict for the plaintiff in the amount established by the plaintiff's evidence as being the amount of the loss. After denial of a new trial motion, this appeal followed. Held:

1. Because the testimony from the plaintiff's employee brought the factual situation within the ambit of the Atlanta Tallow Co. case the trial court was correct in declining to sustain a motion for directed verdict for the insurer and in refusing to charge the written requests based upon the Cleveland Ave. Liquor Store case. Accordingly we rule enumerations numbers 1, 2 and 3 to be without merit.

2. The fourth enumeration of error asserts the court erred in submitting to the jury certain legal rules for construction of the insurance policy. The judge charged the jury the legal principle that a contract of insurance was to be construed against the insurer which language was a correct statement of the law taken from Southeastern Fidelity Ins. Co. v. McDonald, 125 Ga.App. 394, 188 S.E.2d 162. The court further charged that ambiguities in an insurance contract shall be construed most favorably toward the insured and most strongly against the insurer. This too is a correct legal principle. But it is not the province of the jury to construe unambiguous contracts. In fact it is error to submit such question to the jury. Empire Mills Co. v. Burrell Engineering, etc., Co., 18 Ga.App. 253(1), 89 S.E. 530. The duty to construe contracts is upon the court. McCann v. Glynn Lumber Co., 199 Ga. 669, 679, 34 S.E.2d 839; Carter v. Turbeville, 90 Ga.App. 367, 369, 83 S.E.2d 72.

' The construction of a contract is a question of law for the court. Where any matter of fact is involved (as the proper reading of an obscurely written word), the jury should find the fact.' Code, § 20-701. Contracts, even when ambiguous, are to be construed by the court and no jury question is presented unless after application of applicable rules of construction an ambiguity remains. From Supply Co. v. Cook, 116 Ga.App. 814(1), 159 S.E.2d 128; Chalkley v. Ward, 119 Ga.App. 227(7), 166 S.E.2d 748. Insurance policies being contracts, the decisions have held that the matter of construction is for the court. Mass. Benefit, etc. v. Robinson, 104 Ga. 256(7), 30 S.E. 918; Genone v. Citizens Ins. Co. of New Jersey, 207 Ga. 83, 86, 60 S.E.2d 125; Davis v. United, etc., Life Ins. Co., 215 Ga. 521(2), 111 S.E.2d 488; Cherokee, etc., Life Ins. Co. v. Baker, 119 Ga.App. 579, 584, 168 S.E.2d 171.

A case on all fours to that at bar is California Ins. Co. v. Blumburg, 101 Ga.App. 587, 115 S.E.2d 266. There the trial judge used the same language as was used here in instructing the jury to construe the insurance policy against the company and favorably to the insured. This was held to be error requiring a new trial. At p. 591, 115 S.E.2d at p. 269 our court said, 'The rules of law set forth in the Code with respect to the construction of contracts are framed for the guidance and direction of the courts. Except in cases where the meaning of obscurely written words is involved, and where there is evidence tending to show that the meaning of such words was differently understood in one way or another by the parties to the contract, it is improper to submit to the jury any question as to the construction of the contract. Except in such cases it is clearly error and improper for the court to give the jury any instruction with regard to the manner in which the contract should be construed. (Cits.).' In accord are Davis v. United, etc., Life Ins. Co., 215 Ga. 521, 526, 111 S.E.2d 488, and Mergenthaler Linotype Co. v. Glover Printing, etc., Co., 58 Ga.App. 634, 199 S.E. 756. It was therefore error for the court to submit the question of construction of the insurance policy to the jury.

3. As this case must be reversed by reason of this error it is unnecessary to deal with the remaining enumerations of error which are not likely to occur upon a retrial.

Judgment reversed.

BELL, C.J., HALL and EBERHARDT, P. JJ., and PANNELL, DEEN, QUILLIAN and STOLZ, JJ., concur.

EVANS, J., dissents.

EVANS, Judge (dissenting).

I dissent from the majority holding in Division 2 of the opinion that the trial court committed reversible error as to its instructions to the jury...