Mingledorff v. Bell
| Decision Date | 02 April 1963 |
| Docket Number | 2,3,Nos. 1,No. 39881,39881,s. 1 |
| Citation | 107 Ga.App. 685,131 S.E.2d 118 |
| Parties | F. W. MINGLEDORFF, Sr., et al. v. Frieda C. BELL, Adm'x, et al |
| Court | Georgia Court of Appeals |
Bouhan, Lawrence, Williams, Levy & McAlpin, Kirk McAlpin, Walter C. Hartridge, II, Savannah, Charles M. Jones, Hinesville, for plaintiff in error.
Brannen, Clark & Hester, H. Sol Clark, Oliver, Davis & Maner, Edwin Maner, Jr., Savannah, for defendant in error.
Syllabus Opinion by the Court
1. Where on a motion for summary judgment it appears that the question is one of law and the pleadings disclose no genuine issue as to any material fact, the motion may be granted with or without supporting affidavits. Dillard v. Brannan, 217 Ga. 179(3), 121 S.E.2d 768. The decisive question here being the interpretation of an insuring clause in an automobile service station liability policy, the petition of the insurer for declaratory judgment together with the attached policy and admissions contained in the answer forms a sufficient basis for deciding the case.
2. The disputed clause of this insurance policy commits the company 'to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of: (a) bodily injury * * * caused by accident and arising out of the ownership, maintenance or use of the premises for the purpose of an automobile service station * * * and all operations necessary or incidental thereto; and the use in connection with such operations of any automobile not registered in the name of, nor owned in whole or in part * * * by * * * employees or agents of the insured or by a member of the household of any such person.' The insured operated a business known as Bob's Truck Stop in connection with which there was a service station; this business constituted the insured premises. The defendant Peterson, and employee of the insured, drove an automobile belonging to his mother, a member of his household, to his place of employment with the intention of having it serviced; on the way back to his mother's home he suffered a collision with a vehicle in which another defendant in this declaratory judgment action was injured and who subsequently filed suit against him and the administratrix of the deceased insured. Plaintiffs in error contend that Peterson was not acting in the premises for himself or his mother, but as an employee of the service station in returning the car of a customer (his mother) to the owner after having had it serviced, an operation benefiting the service station; that coverage is afforded for the reason that the accident arose out of an operation necessary or incidental to the use of the premises as a service station, viz., the act of the insured through his employee in returning a bailed automobile to the owner. The insurer contends that 'operations incidental to' the use of the premises include in connection therewith operations of automobiles only insofar as such vehicles are not owned by a member of the household of the employee. Plaintiffs in error cite, in support of the first contention, the cases of Challis v. Commercial Standard Ins. Co., 117 Ind.App. 180, 69 N.E.2d 178 and Maryland Casualty Co. of Baltimore v. Beckham, 163 Miss. 836, 143 So. 886, neither of which cases are in point because they deal with the interpretation of the word 'use'. In Squires v. Textile Insurance Co., 250 N.C. 580, 108 S.E.2d 908 it was held that the provision of the policy making the employee an insured controlled over the ambiguous exclusionary clause. Employees are not included in the definition of an insured person in the policy here. In Lobe v. Bankers Indemnity Ins. Co., 343 ILL.App. 500, 99 N.E.2d 588 it was held that under a policy covering ownership, maintenance and use of the premises as a repair shop and 'ownership, maintenance or use of any automobile for any purpose in connection with the above defined operations' but excluding 'any automobile owned by a member of the named insured's family,' where the insured's wife left her automobile in the garage owned by the insured for repairs, and the insured, using it in the course of the garage business and also testing it to see what repairs were needed simultaneously, could not recover for the reason that there was no coverage. We think the plain meaning of the insuring agreement involved in the present case is that it does not cover vehicles owned by named insureds or a member of the household of any such insured. The accident did not occur on the premises or arise out of the use of the premises. Assuming but not deciding that the employee in returning home from work in his mother's car was in fact acting as an agent of the service station in returning a customer's car rather than in his own capacity as an employee or as the agent of his mother in having the automobile serviced and returned to her, it is nevertheless obvious that the accident did not arise out of the use of the premises as a service station. It did arise out of the operation of an automobile, which was perhaps engaged in an operation incidental to the use of the premises (that is, the return of a bailed vehicle) but if so the vehicle was not covered because belonging to a member of the household of the employee.
The trial court did not err in granting the motion for summary judgment in favor of the plaintiff insurance company which brought this action for declaratory judgment.
Judgment affirmed.
I agree with the majority that under the terms of the insurance policy here no coverage was afforded to the operation by Peterson of his mother's car. I think, however, that it should be observed that there is nothing in the record upon which to conclude that there was any bailment contract between Mrs. Peterson, the owner, and Bell, who owned the truck stop and service station.
In her affidavit Mrs. Peterson asserts that the son, 17 years of age, lived in the home with her, and that: ...
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