Ditmyer v. American Liberty Ins. Co., 43155

CourtUnited States Court of Appeals (Georgia)
Citation160 S.E.2d 844,117 Ga.App. 512
Docket NumberNos. 1,2,3,No. 43155,43155,s. 1
PartiesPatricia DITMYER et al. v. AMERICAN LIBERTY INSURANCE COMPANY et al
Decision Date28 March 1968

Syllabus by the Court

1. The petition by an insurer seeking a declaratory judgment as to whether there was coverage as an additional insured, and thus whether there existed any duty on its part to defend, sufficiently disclosed the existence of a justiciable controversy as to its 'rights and other legal relations' as an interested party, as contemplated by the Declaratory Judgment Act (Code Ann. § 110-1101 et seq.).

2. Whether the driver of a vehicle was an additional insured under the permissive use or omnibus clause of a liability policy carried by the owner is not dependent upon the existence or non-existence of a master servant relationship at the time of an accident.

3. The 'first instance permission' rule does not obtain in this State. Consequently, whether one operating the vehicle of another was doing so with the owner's permission at the time of an accident is dependent upon whether his use of the vehicle was, at the time, within the permission granted when the driver was given possession, as bailee or otherwise, of the vehicle.

Frank Ditmyer and his wife, Patricia, each filed suit against Herman Henderson alleging that they had been injured by reason of Henderson's negligence when a pickup truck which he operated went past a stop sign and directly in front of an automobile driven by Mrs. Ditmyer and occupied by the husband, causing a collision.

Thereafter American Liberty Insurance Company brought a petition for declaratory judgment, naming as defendants Mr. and Mrs. Ditmyer, Herman Henderson and John Dollar Moree, the latter being the owner of the pickup truck, alleging that it had issued to Moree an automobile liability policy on the pickup truck which had been in force on the date of the collision between the truck and the Ditmyer car, that the policy carried a permissive use or omnibus clause, under which the Ditmyers were claiming that Henderson was an additional insured in that they were claiming that at the time of the collision he was driving the pickup truck with the permission of Moree, the owner, and that they would attempt to enforce any judgments obtained against Henderson against the plaintiff, American Liberty Insurance Company. It was also alleged that the omnibus clause obligated the company to defend any suit filed as a result of any collision involving the pickup truck while being operated by a person with the permission of the named insured, but that it was the contention of the company that Henderson was operating the truck without Moree's permission, that he was not an additional insured under the policy and that it was under no obligation to defend the two pending actions against Henderson. Because of this controversy as to the coverage under the policy the company needed to have its rights declared relative to whether it must defend the suits or pay judgments that might be obtained.

After defensive pleadings were filed by the Ditmyers, American Liberty moved for a summary judgment, submitting in connection therewith the pleadings, affidavits of Moree, Henderson, A. J. Ardovino (verifying the policy) and Arvis Miller (Moree's business partner), plaintiff's answers to the Ditmyers' interrogatories, and the depositions of Moree and Henderson taken by the Ditmyers.

The Ditmyers submitted an opposing affidavit of D. D. Rentz and their defensive pleadings.

On the question of permissive use the evidence disclosed that Moree was engaged in a meat packing business at Albany, that he was in general charge and supervision of it, that Arvis Miller had a ten percent working interest in the business and was second in command, having full charge when Moree was away from the plant, and that on the date of the collision (a Saturday) a route salesman had called in to say that an order of wieners which was to go to the Prison Branch at Leesburg had been left off his truck and asked that the order be sent by another vehicle.

At noon time, when the plant usually closed on Saturdays, Miller directed Henderson to take the order of wieners down to Leesburg on a pickup truck. Henderson testified that he was first instructed to bring the vehicle back to Joe Nichols' Service Station, where all of the plant vehicles were left on weekends for servicing, but that as he started to leave Mr. Miller instructed him to bring the truck back to his house so that he might use it to haul some dirt for his yard, and told him that he would take him back over to the plant where he could pick up his own car. He delivered the wieners to the Prison Branch and returned to Albany, going to Miller's home but Miller had decided that he would not use the truck and instructed Henderson to take it directly to Nichols' Service Station and leave it and get somebody there to take him back to the plant for his car, and to call back on the telephone if he could not get somebody at the station to take him on to the plant, in which event Miller would pick him up and take him to it. Henderson left Miller's house at about 3:30 p.m., ostensibly to go to Nichols' place, but instead went first to a liquor store where he bought a half pint of whiskey and drank it, and then went to a drive-in which he estimated to be some ten miles off the route to Nichols' Service Station and there continued drinking until he became drunk. At 8 p.m., in his intoxicated condition, he started to leave for the plant and collided with the Ditmyers at the street intersection.

On being asked whether he had permission to go out to the drive-in Henderson replied in the negative and asserted that 'if they had knowed I was going, they probably would have told me (not to go); they probably wouldn't have let me do it.' He was then asked whether he had thought he might get fired for doing it and answered, 'Well, I don't know. I was just taking a chance.' He testified that he did not usually drive the company vehicles, that his duties were in the plant and that his driving it was 'an exceptional thing.' He was asked: 'Q. Now, did Mr. Moree ever authorize you to use any of his vehicles for your personal business? A. No, sir. Q. And had you ever used a truck before for your personal business? A. No, sir. * * * Q. Did you have Mr. Moree's permission to go on any personal business before you took it to Joe Nichols that afternoon? A. No, sir. Q. Did you know that you didn't have permission? A. Yes, sir.'

Mr. Moree testified that except for Miller, who was a part owner in the business, the employees were not permitted to use company vehicles for their personal business, that they were not permitted to take the vehicles home overnight or on weekends. He knew that Henderson had a drinking problem, but he was not drinking when he took the pickup to go to Leesburg for delivering the wieners to the Prison Branch. He had probably taken a truck on other trips of a similar nature, but when employees drive company trucks they do not have permission to use them on personal business. Whether any employee had ever stopped off to buy groceries while out on a trip with a company truck he did not know, but if so they had no permission to do it and it was in violation of instructions. They would be doing it on their own.

Mr. Miller testified he knew that Henderson took the pickup for delivering the wieners to the Prison Branch and that he had expected him to bring it by his house by 3:30 p.m., which he did; that upon his arrival he instructed Henderson to take the truck to Nichols Service Station and leave it, and that if somebody there could not take Henderson back to the plant to call him (Miller) on the phone and he would come over and take Henderson to the plant. He testified that Henderson was not to drive the truck anywhere else, and that he did not have permission to drive or use the truck other than to deliver it to the Nichols Service Station.

From a grant of the motion for summary judgment holding that the truck was not being used with the permission of the owner at the time of the collision and that there was, consequently, no coverage under the policy and relieving the company of any obligation to defend the suits, the Ditmyers appeal.

Burt & Burt, Donald Rentz, H. P. Burt, Albany, for appellants.

Farkas, Landau & Davis, James V. Davis, Smith, Gardner, Wiggins & Geer, Albany, for appellees.

EBERHARDT, Judge.

1. The allegations and prayers of this petition clearly bring it within the ambit of the Declaratory Judgment Act (Code Ann. § 110-1101 et seq.). The insurer was faced with the immediate necessity of accepting an obligation to defend the suits brought by the Ditmyers against Henderson or of repudiating the claimed obligation. It was faced with an immediacy of choice before rights might become fixed or affected by the rendition of judgments.

'Where an insurer denies coverage under a particular policy and seeks to relieve itself of its obligation to defend a pending suit against an insured because of circumstances pleaded which cast doubt on the coverage of the policy as applied to those circumstances, there is such an immediacy of choice imposed upon it as to justify an adjudication by declaratory judgment.' Nationwide Mutual Ins. Co. v. Peek, 112 Ga.App. 260, 145 S.E.2d 50. Accord: Mensinger v. Standard Acc. Ins. Co., 202 Ga. 258, 42 S.E.2d 628; Georgia Cas. & Surety Co. v. Turner, 86 Ga.App. 418, 71 S.E.2d 773; Parks v. Jones, 88 Ga.App. 188, 76 S.E.2d 449; Darling v. Jones, 88 Ga.App. 812, 78 S.E.2d 94; Griffin v. Hardware Mut. Ins. Co., 93 Ga.App. 801, 92 S.E.2d 871; Buffington v. New Hampshire Fire Ins. Co., 104 Ga.App. 139, 121 S.E.2d 270; Dearhart v. Reserve Ins. Co., 108 Ga.App. 347, 132 S.E.2d 809, reversed on other grounds in 219 Ga. 699, 135 S.E.2d 378; Mock v. Darby, 109 Ga.App. 620, 137 S.E.2d 81.

Although it is true...

To continue reading

Request your trial
32 cases
  • Brown v. Sheffield
    • United States
    • Georgia Court of Appeals
    • February 26, 1970
    ...v. Wright, 116 Ga.App. 138, 156 S.E.2d 532; Saunders v. Vikers, 116 Ga.App. 733(5, 6, 7), 158 S.E.2d 324; Ditmyer v. American Liberty Ins. Co., 117 Ga.App. 512, 520, 160 S.E.2d 844; Jones v. Cloud, 119 Ga.App. 697, 168 S.E.2d 598; and see R. J. Reynolds Tobacco Co. v. Newby, 9 Cir., 145 F.2......
  • LaSalle Nat. Ins. Co. v. Popham
    • United States
    • Georgia Court of Appeals
    • March 17, 1972
    ...809, reversed on other grounds in 219 Ga. 699, 135 S.E.2d 378; Mock v. Darby, 109 Ga.App. 620, 137 S.E.2d 81; Ditmyer v. American Liberty Ins. Co., 117 Ga.App. 512, 160 S.E.2d 844; Stubbs v. State Farm Mut., etc., Ins. Co., 120 Ga.App. 750, 172 S.E.2d Professor Borchard, who drafted the Fed......
  • Richmond v. Georgia Farm Bureau Mut. Ins. Co.
    • United States
    • Georgia Court of Appeals
    • October 7, 1976
    ...v. Johnson, 216 Ga. 437, 117 S.E.2d 459; LaSalle Nat. Ins. Co. v. Popham, 125 Ga.App. 724, 188 S.E.2d 870; Ditmyer v. American Liberty Ins. Co., 117 Ga.App. 512, 160 S.E.2d 844; Pennsylvania Threshermen Etc., Ins. Co. v. Wilkins, 106 Ga.App. 570, 127 S.E.2d 693. A proper and safe course of ......
  • Thomas v. Atlanta Cas. Co.
    • United States
    • Georgia Court of Appeals
    • December 19, 2001
    ...334-335, 208 S.E.2d 170 (1974) (determination of duty to defend prior to judgment on tort action); Ditmyer v. American Liberty Ins. Co., 117 Ga.App. 512, 515-516(1), 160 S.E.2d 844 (1968) (determine obligation to The General Assembly has vested in the superior court subject matter jurisdict......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT