Drake v. General Acc., Fire & Life Assur. Corp.

• Decision Date: 27 May 1953
• Docket Number: 34621,Nos. 34607,No. 1,s. 34607,1
• Citation: 88 Ga.App. 408,77 S.E.2d 71
• Court: Georgia Court of Appeals
• Parties: DRAKE v. GENERAL ACCIDENT, FIRE & LIFE ASSURANCE CORPORATION, Limited. GENERAL ACCIDENT, FIRE & LIFE ASSURANCE CORPORATION, Limited v. DRAKE

Page 71

77 S.E.2d 71

88 Ga.App. 408

DRAKE v. GENERAL ACCIDENT, FIRE & LIFE ASSURANCE CORPORATION, Limited.

GENERAL ACCIDENT, FIRE & LIFE ASSURANCE CORPORATION, Limited v. DRAKE.

Nos. 34607, 34621.

Court of Appeals of Georgia, Division No. 1.

May 27, 1953.

Rehearing Denied June 12, 1953.

Syllabus by the Court.

The evidence authorized a finding that the plaintiff was an insured within the meaning of the omnibus clause of the liability-insurance policy issued by the defendant, and the court erred in directing a verdict for the defendant and in denying the amended motion for new trial in case Number 34607. For reasons stated in the opinion, the court did not err in overruling the general demurrer to the petition in case Number 34621.

Mrs. Lucile Drake petitioned the Fulton Superior Court for a declaration of her rights under a liability-insurance policy issued by General Accident, Fire and Life Assurance Corporation, Limited. The petition alleged substantially: that the plaintiff's husband owned a 1948 Chevrolet automobile; that such automobile was a family car and was used by both the plaintiff and her husband; that, on or about July 27, 1951, said automobile was in need of repairs, and the plaintiff's husband took it to J. L. Weddington, Jr., Incorporated, a garage, for the purpose of having the necessary repairs made; that, upon taking the automobile into the garage for repairs, W. F. Sewell, the person in charge of the garage, loaned the plaintiff's husband the garage's 1935 Chevrolet automobile to use while his automobile was being repaired; that no restriction whatever was put on the use of the loaned 1935 Chevrolet automobile; that, on or about July 27, 1951, the plaintiff was using the loaned automobile when she had a collision with another automobile; that as a result of such collision the occupants of the other automobile involved in the collision have sued the plaintiff to recover damages they received in such collision; that, prior to and at the time of such collision, J. L. Weddington, Jr., Inc., had a liability-insurance policy issued by the defendant covering the operation of the 1935 Chevrolet automobile; that the plaintiff is a person defined as 'Insured' by the terms of said liability-insurance policy, and is entitled to the rights and benefits arising under such policy; that the provision of the policy under which she claims her rights and benefits as an insured is as follows: 'III. Definition of Insured. With respect to the insurance under Coverages A, B and D the unqualified would 'Insured' includes the named Insured and also includes * * * (2) any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named Insured or with his permission'; that, after the collision, the plaintiff gave notice to the defendant as provided by the policy; that the defendant contends that it is not obligated to defend the plaintiff under the terms of the policy, and that it will not be obligated to pay any judgment that may be rendered in favor of the parties suing the plaintiff up to the face amount of the policy; that the situation presented by the facts hereinabove set out and the conflicting contentions of the parties is an extremely doubtful one and presents a proper case for the declaration of the rights of all parties hereto with regard to the said insurance policy.

The defendant's general demurrer to the petition was overruled. At the close of the evidence the court directed a verdict for the defendant. The plaintiff's amended motion for new trial, containing the special ground that the court erred in directing a verdict, was overruled and the plaintiff excepts. The defendant by cross-bill of exceptions assigns error on its exceptions pendente lite to the overruling of its general demurrer.

James A. Branch, Thomas B. Branch, Jr., Atlanta, J. L. Glover, Newnan, for plaintiff in error.

Wm. F. Buchanan, Newell Edenfield, Haas & Hurt and J. Corbett Peek, Jr., Atlanta, for defendant in error.

FELTON, Judge.

The question for determination on the main bill of exceptions is whether there is sufficient evidence to authorize a jury to find that the plaintiff was using the loaned automobile with the 'permission' of the insured within the meaning of the omnibus clause of the policy. Roy Drake, the plaintiff's husband, testified that he took his own automobile to J. L. Weddington, Jr., Inc., to have certain repairs made thereon. Upon learning that the repairs would take some time, he inquired of the company's agent if he might borrow one of the company's automobiles to use while his own automobile was being repaired. He further testified: 'Regarding what was said on this occasion when I borrowed the '35 Chevrolet about me borrowing an automobile--there wasn't but a few words said. Something was said about I wanted the car fixed and couldn't get it fixed that day, and I said something about a car to use, and they said the service truck was out, it would be about 5 before it got back, and I told them that I couldn't wait that long, I wanted to get on back to the house, and he said, well, the only thin that they had was a '35 Chevrolet out on the sales lot and I could use that if I wanted to, and he turned around to one of the mechanics and said go out there and get Roy that Chevrolet, and he took and drove it up in the front door, and I got in it and came home, and he said, 'if you find anybody that wants to buy it for a hundred dollars while you have got it down there,' said, 'sell it to them.' I have told you substantially everything that was said at the time I borrowed the car. It was a conversation, as I would say, of less than five minutes, three or four or five minutes. Bill turned and walked off and was talking to somebody else on the job when I left. And I got in the car and came on home. * * * Mrs. Drake used it [witness's automobile]...