Cotton States Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 43705

• Decision Date: 07 October 1968
• Docket Number: No. 2,No. 43705,43705,2
• Citation: 118 Ga.App. 451,164 S.E.2d 262
• Parties: COTTON STATES MUTUAL INSURANCE COMPANY et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al
• Court: Georgia Court of Appeals

Page 262

164 S.E.2d 262

118 Ga.App. 451

COTTON STATES MUTUAL INSURANCE COMPANY et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.

No. 43705.

Court of Appeals of Georgia, Division No. 2.

Oct. 7, 1968.

Syllabus by the Court

Where the owner of a motor vehicle loaned it to another, a third person was using the vehicle with permission of the owner within the meaning of the omnibus clause of the owner's automobile liability insurance policy provided it was being used for a permitted purpose, regardless of whether the third person had the owner's express or implied permission to drive.

State Farm Mutual Insurance Company brought this action for declaratory judgment against Cotton States Mutual Insurance Company, J. Roy Kelly, Fred Hagins, and Alvin and Saundra Kicklighter.

The petition showed that on December 1, 1965, Saundra Kicklighter, while operating an automobile owned by her husband, Alvin Kicklighter, was involved in a collision with a pickup truck driven by Fred Hagins and owned by Kelly. Saundra and Alvin Kicklighter each filed a suit for damages against both Hagins and Kelly. On the date of the collision the Kicklighter vehicle was covered by an automobile insurance policy issued by State Farm and providing protection against uninsured motorists. The other vehicle was covered by a policy issued by Cotton States. Cotton States contended there was no liability coverage of the collision because Hagins was operating Kelly's vehicle without the owner's permission. State Farm took the contrary position, contending that since the policy issued by Cotton States provided liability coverage for operation of the vehicle by Hagins, State Farm would not be obligated under the Kicklighters' uninsured motorist's coverage.

The policy issued by Cotton States, in defining persons insured with respect to the owned vehicle, included 'any other person using such automobile, provided the actual use thereof is with the permission of the named insured, and is within the scope of such permission,' in addition to the named insured and any relative resident in the same household.

The depositions and affidavits considered on the hearing of plaintiff's motion for summary judgment showed that Johnny Hagins (father of Fred Hagins) lived with his wife and children on Kelly's farm, and had been employed by Kelly for three years as a 'wage hand' to do farm labor. About a week or ten days before the collision Kelly lent the pickup truck to Johnny Hagins, whose car was not in operating condition, until the latter could have the car repaired. At the time of the collision, Johnny Hagins and his son Fred were in the truck going to feed and water Kelly's hogs. This was one of the duties of the employment. Fred went with him to keep him company and to do the driving because Johnny was not feeling well. The evidence was not conclusive as to whether Fred Hagins occupied the position of a servant of Kelly when the collision occurred, but it was clear that Hagins was operating the vehicle without express permission or express prohibition by Kelly.

The trial court granted plaintiff's motion for summary judgment, declaring that coverage was extended to Hagins under the omnibus provision of the policy issued by Cotton States. Defendant Kelly and Cotton States took this appeal from that judgment.

Neville & Neville, W. J. Neville, Statesboro, for appellant.

Hitch, Miller, Beckmann & Simpson, ...