Griffin v. Hardware Mut. Ins. Co.

• Decision Date: 30 April 1956
• Docket Number: No. 36095,No. 1,36095,1
• Citation: 93 Ga.App. 801,92 S.E.2d 871
• Parties: Wade GRIFFIN et al. v. HARDWARE MUTUAL INSURANCE COMPANY
• Court: Georgia Court of Appeals

Page 871

92 S.E.2d 871

93 Ga.App. 801

Wade GRIFFIN et al. v. HARDWARE MUTUAL INSURANCE COMPANY.

No. 36095.

Court of Appeals of Georgia, Division No. 1.

April 30, 1956.

Syllabus by the Court.

1. The court did not err in overruling the demurrers to the petition for declaratory judgment.

2. The court erred in finding that the defendant Griffin was an employee of the defendant Paige at the time of Griffin's injuries, and that therefore Griffin came within the exclusion clause of the garage's liability policy issued by the insurance company to cover the plaintiff's operation of a service station.

Hardware Mutual Insurance Company of Minnesota brought an action for a declaratory judgment against L. A. Paige and Wade Griffin in the Superior Court of Dougherty County. The petition alleged: that there was a case pending in the City Court of Albany wherein Wade Griffin had sued L. A. Paige for injuries allegedly caused by Paige's negligence. A copy of Griffin's petition in that action was attached to the petition for declaratory judgment as an exhibit, and is as follows: '* * * 2. On November 29, 1954, defendant was operating a service station at 900 Oglethorpe Avenue in the City of Albany, Georgia. 3. On November 29, 1954, plaintiff entered defendant's premises as an invitee, express or implied, of defendant. This service station was a public station, wherein the public was invited to stop and partake of the services customarily rendered at a public automobile service station. 4. On said date, while plaintiff was on the premises, the defendant was adjusting the motor timing on an automobile owned by one of defendant's customers. 5. Defendant's regular mechanic was busy and therefore not available to help defendant time the motor aforesaid. 6. Defendant, knowing that plaintiff was an expert mechanic, asked plaintiff to help with the timing adjustment. 7. As a gratuitous service rendered by plaintiff for the sole benefit of defendant, plaintiff undertook to assist the defendant with the timing adjustment. 8. Plaintiff and defendant loosened the generator bult and took the belt off the pulley. The automobile engine was idling. Plaintiff instructed defendant to leave the belt off the pulley until plaintiff finished wiping the pulley clean. 9. Plaintiff began wiping the generator pulley with a cloth. Defendant reached down and put the belt back on the generator pulley. Although the belt had not been retightened and was still loose, a portion of the cloth in plaintiff's hand was between the belt and the pulley, thereby filling the slack space and giving traction to the belt. 10. When the generator belt started to turn, the cloth in plaintiff's left hand was jerked around the pulley; plaintiff's left hand also was caught by the belt and jerked into the pulley. 11. When plaintiff's left hand was jerked into the pulley, the pulley cut plaintiff's hand across the back, cutting the tendons that control the fingers. * * *'

The Insurance Company had issued a Garage Liability Policy covering the operation of Paige's Service Station. Upon being sued by Griffin, Paige notified the Insurance Company and requested that they defend him in the action. The Insurance Company contends that there was no coverage under these circumstances because at the time Griffin was injured he was Paige's employee and, therefore, came within the following exclusion in the policy: '(d) Under coverages A and C, to bodily injury to or sickness, disease or death of any employee of the insured while engaged in the employment of the insured.'

The insurance company contends that the allegations in Griffin's suit against Paige show that, at the time Griffin was injured, he was Paige's employee. The insurance company further alleged that a declaratory judgment is necessary in order to guide and protect the plaintiff from uncertainty and insecurity with respect to its future acts and conduct in reference to the action between Griffin and Paige. In addition to a prayer for a declaration of the rights of the respected parties, the insurance company prayed for a stay of the proceedings in the City Court of Albany until the matter of the declaratory judgment could be disposed of.

The defendants' demurrers to the petition for a declaratory judgment were overruled. There being no issue of fact involved, the judge tried the case without the intervention of a jury, and found in favor of the insurance company. The...