Southeastern Fidelity Ins. Co. v. Stevens

Decision Date15 June 1977
Docket NumberNo. 3,No. 53966,53966,3
Citation236 S.E.2d 550,142 Ga.App. 562
PartiesSOUTHEASTERN FIDELITY INSURANCE COMPANY v. J. G. STEVENS
CourtGeorgia Court of Appeals

Syllabus by the Court

1. Where the driver of the vehicle in which the deceased was sitting holding a pistol turned from a smooth paved road onto a bumpy, rutted, unpaved road and immediately thereafter the pistol discharged, killing the insured, it cannot be said as a matter of law that the accident did not arise out of the operation, maintenance or use of a motor vehicle as a vehicle, the question at issue being whether the latter occurrence flowed from, grew out of, or had its origin in the former.

2. Where a factual issue must be determined by circumstantial evidence, it is for the court to say whether the conclusion is in fact supported by evidence. If so, in the event of conflicting hypotheses both resting upon circumstantial evidence, it is for the jury to determine which set of inferences prevails, or whether their weight is equal so as to defeat a recovery.

Appellee Stevens carried an insurance policy with the appellant which covered his son as a member of his family. The policy, as part of its personal injury protection coverage, provided for payment of medical and funeral 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." He was riding as a passenger in a truck driven by the only eyewitness along a smooth, paved road when, about a mile and a half from her house, he took a pistol from the glove compartment and complained that it had jammed. The driver asked him to put it up. She did not notice what he did next; however, as she turned off the highway onto an unpaved, bumpy roadway containing numerous potholes, and had proceeded a very short distance toward the house, the pistol went off. Young Stevens was killed.

Evidence was offered by stipulation to the trial judge hearing the case without a jury. This appeal is from the judgment in favor of the insured.

Young, Young, Ellerbee & Clyatt, E. Thomas Young, Valdosta, for appellant.

Barham & Bennett, Ed G. Barham, Valdosta, for appellee.

DEEN, Presiding Judge.

1. It is first contended that the death did not arise out of the use or operation of the truck. This clause, a common one in motor vehicle insurance policies, has been subject to construction in other states, and it is usually interpreted in a broad sense for the usual reasons: that it is ambiguous, or should be construed in favor of the insured, or against the party drafting it, and the burden of proving an exclusion is on the insurer. Carter, Adm. v. Bergeron, 102 N.H. 464 (160 A.2d 348), follows the majority rule 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 vehicle, nor that the insured vehicle was exerting any physical force upon the instrumentality which was the immediate cause of the injury. That almost any causal connection or relationship will do, see Travelers Ins. Co. v. Aetna Cas & Sur. Co., Tenn., 491 S.W.2d 363: "Case law indicates that the injury need not be the proximate result of 'use' in the strict sense, but it cannot be extended to...

To continue reading

Request your trial
51 cases
  • Willard v. Kelley, 69347
    • United States
    • Supreme Court of Oklahoma
    • December 4, 1990
    ...Plaintiffs, in urging that Willard's wounds were covered by the uninsured motorist policy, cite Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga.App. 562, 236 S.E.2d 550 (1977) and Valdes v. Smalley, 303 So.2d 342 (Fla.Dist.Ct.App.1974). In Stevens, the insured's son was killed when a gun,......
  • Wendell v. State Farm Mut. Auto. Ins. Co.
    • United States
    • United States State Supreme Court of Montana
    • June 18, 1998
    ...out of", or "flowed from" the use of the vehicle. (Citations omitted.) Dorris, 288 S.E.2d at 858 (citing Southeastern Fid. Ins. Co. v. Stevens (1977), 142 Ga.App. 562, 236 S.E.2d 550 (construing the phrase "arising out of the use" in the context of personal injury protection coverage)). In ......
  • Garrison v. State Farm Mut. Auto. Ins. Co., 71055
    • United States
    • Court of Appeals of Kansas
    • April 21, 1995
    ...... See Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga.App. 562, 564, 236 S.E.2d 550 (1977). In our case, the ......
  • Cameron Mut. Ins. Co. v. Ward
    • United States
    • Court of Appeal of Missouri (US)
    • April 7, 1980
    ...Mutual Automobile Ins. Co. v. Partridge, 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 123 (1973); and Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga.App. 562, 236 S.E.2d 550 (Ga.App.1977). In Partridge, a pistol equipped with a "hair trigger" accidentally discharged and wounded a passenger ......
  • Request a trial to view additional results
1 books & journal articles
  • Insurance - Stephen M. Schatz, Stephen L. Cotter, and Bradley S. Wolff
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 59-1, September 2007
    • Invalid date
    ...v. Ga. Farm Bureau Mut. Ins. Co., 216 Ga. App. 602, 603, 454. S.E.2d 813, 814 (1995)). 43. Id. (quoting Se. Fid. Ins. Co. v. Stevens, 142 Ga. App. 562, 564, 236 S.E.2d 550, 551 (1977)). 44. Id. at 499, 646 S.E.2d at 686. 45. Id. at 498-99, 646 S.E.2d at 686. 46. Id. 47. Id. 48. O.C.G.A. Sec......

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