American Cas. Co. v. Fisher

• Decision Date: 03 December 1942
• Docket Number: 14337.
• Citation: 23 S.E.2d 395,195 Ga. 136
• Parties: AMERICAN CASUALTY CO. v. FISHER.
• Court: Georgia Supreme Court

23 S.E.2d 395

195 Ga. 136

AMERICAN CASUALTY CO. v. FISHER.

No. 14337.

Supreme Court of Georgia

December 3, 1942

See also, 194 Ga. 157, 21 S.E.2d 68.

Smith Smith & Bloodworth and Croom Partridge, all of Atlanta for plaintiff in error.

Neely Marshall & Greene and W. Neal Baird, all of Atlanta, for defendant in error.

REID Chief Justice.

Before a ruling was made by the Court of Appeals in this case, a question respecting the liability under the insurance policy involved was propounded to this court; but deeming the question incomplete, we declined to answer it. Fisher v. American Casualty Co., 194 Ga. 157, 21 S.E.2d 68. The Court of Appeals then rendered an opinion concurred in by two of the Judges.

Fisher v. American Casualty Co., 67 Ga.App. 784, 21 S.E.2d 306, 309. We granted certiorari. A full statement of the facts may be found in the report of this decision by the Court of Appeals, and only necessary reference to the pertinent facts will be here made. As a preliminary part of the decision the Court of Appeals made the following statement:

"The plaintiff was injured by the alleged negligence of Charles H. Barner. She brought suit against Barner and obtained a judgment. The injury was sustained when Barner, while in the act of delivering to the office in which the plaintiff was employed, a new adding machine, negligently caused the new machine to fall on the plaintiff's foot. Barner was the employee of the Underwood-Elliott-Fisher Company and was delivering the new adding machine for his employer at the time the accident occurred. Barner, as such employee, was insured by the defendant. The policy provided that, in the event of an accident within the terms of the policy and the procurement of a judgment by the person injured against the insured, the company would indemnify the insured to the extent of $10,000 for each person who might be injured and to whom the insured might be liable, and that a suit to recover on this judgment to the extent of such liability could be instituted directly against the insurer by the injured person. The policy provided that the company agreed 'to pay on behalf of the insured all sums which the insured should become obligated to pay by reason of the liability imposed upon him by law for damages *** sustained by any person or persons, caused by accident arising out of the ownership, maintenance, or use of the automobile' described in the policy, which automobile the policy provided was to be used by the insured as an employee of the Underwood Company for commercial purposes only. The policy defined 'commercial' purposes as being the 'transportation or delivery' of goods, merchandise or other materials, and 'uses incidental thereto, in direct connection' with the business occupation of the insured, and provided that 'use of the automobile for the purposes stated includes the loading and unloading thereof."'

The Court of Appeals in its decision then treated the accident resulting from the negligence of the employee of the Underwood Company in removing an adding machine from a table on which he had placed another adding machine, of which he was making delivery, as coming within the terms of liability imposed upon the insurance company under its indemnity contract. The insuring clause of the policy was as follows: "To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons, caused by accident arising out of the ownership, maintenance, or use of the automobile." It was further stated on the face of the policy: "Item 5. The purposes for which the automobile is to be used are commercial. (b) The term 'commercial' is defined as the transportation or delivery of goods, merchandise, or other materials, and uses incidental thereto, in direct connection with the named insured's business occupation as expressed in item 1. (c) Use of the automobile for the purposes stated include the loading and unloading thereof."

The suit resulting in a judgment against Barner merely declared upon his negligence in respect to his manner of handling the adding machine, and in removing it from a table which it was charged in the petition he should have known would become upset "immediately upon removal of the machine which had been in temporary use." It was charged in the petition that it was Barner's duty, "under his contract or arrangement with the Underwood-Elliott-Fisher Company, to install said new machine on the desk provided by the Government for that purpose," and to do this it was necessary to remove the other machine which had been in temporary use. No mention was made of any automobile or of any connection between the delivery or installation of the machine and any particular kind of transportation. It was simply a suit for personal injuries growing out of the aforementioned negligence. But in the present action against the casualty company the plaintiff set out by amendment her claim that at the time of the injury Barner was completing the delivery of the machine in the furtherance of his business for the Underwood Company, that the delivery was incidental to the use of the insured automobile as a commercial car, and that this delivery constituted a part of the unloading of the machine. The Court of Appeals accepted the theory presented by these latter allegations.

Contracts of insurance, like other contracts, are subject to the rule of law that the intention of the parties must be ascertained. "The cardinal rule of construction is to ascertain the intention of the parties. If that intention be clear, and it contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced, irrespective of all technical or arbitrary rules of construction." Code, § 20-702. See, in connection with interpretation of contracts, Code, § 20-704 ...