Payne v. Southern Guaranty Ins. Co.

• Decision Date: 25 June 1981
• Docket Number: No. 61360,61360
• Citation: 159 Ga.App. 67,282 S.E.2d 711
• Parties: PAYNE v. SOUTHERN GUARANTY INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 711

282 S.E.2d 711

159 Ga.App. 67

PAYNE v. SOUTHERN GUARANTY INSURANCE COMPANY.

No. 61360.

Court of Appeals of Georgia.

June 25, 1981.

Certiorari Denied Sept. 8, 1981.

Lawrence C. Walker, Jr., Michael G. Gray, Perry, for appellant.

E. Bruce Benton, Wallace Miller, III, Macon, for appellee.

POPE, Judge.

Southern Guaranty sought a declaratory judgment as to its liability under no-fault liability and provisions of a contract of insurance issued by it to Donald A. Riddle. The undisputed facts giving rise to the claim were that Riddle went deer hunting in a Chevrolet pickup truck insured by Southern Guaranty, accompanied by appellant Robert Lee Payne who at all times was seated in the passenger seat of the truck. Riddle, who was driving, spotted a deer, stopped the truck and got out to shoot the deer. Believing that he had hit the deer, Riddle got back in the truck cab and placed the rifle barrel down between the two seats. The rifle discharged and a bullet struck Payne in the left leg and right foot.

The insurance policy provisions in controversy recite as follows: "Coverage A--Bodily Injury Liability ... 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 ... sustained by any person ... arising out of the ownership, maintenance or use of the owned automobile ... 'use' of an automobile means the actual manual and physical driving of the automobile and includes the loading and unloading thereof ...

"PERSONAL INJURY PROTECTION COVERAGE--The company will pay personal injury protection benefits for (a) medical expenses [and other named expenses] incurred with respect to bodily injury sustained by an eligible injured person and caused by an accident arising out of the operation, maintenance or use of a motor vehicle as a vehicle..."

Both parties made motions for judgment on the pleadings and the trial court found "that the injury was sustained by the passenger (Payne) as a result of and in the course of deer hunting activities and not from any active or passive activity or condition of the truck. For the deer hunting activity the function of the truck was to provide transportation, while the planned function of the gun was to kill the deer. The truck was at a stand-still when the gun fired; therefore, the truck could not in any way have proximately caused or contributed to the firing of the rifle; likewise it could be said that the rifle was in the course of being used for deer hunting at the time that it was taken from the truck, was fired at the deer, and was being replaced in the truck." Southern Guaranty's motion on the pleadings was granted, denying coverage. We conclude that the trial court misconstrued the terms of the policy and, accordingly, reverse.

In Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga.App. 562, 563, 236 S.E.2d 550 (1977), this court followed the majority rule as to construction of motor vehicle insurance policies "in holding that the term 'arising out of' does not mean proximate cause in the strict legal sense nor require a finding that the injury was directly and proximately caused by the use of the...