Strickland v. Georgia Cas. & Sur. Co., 24636

• Decision Date: 02 July 1968
• Docket Number: No. 24636,24636
• Citation: Strickland v. Georgia Cas. & Sur. Co., 162 S.E.2d 421, 224 Ga. 487 (Ga. 1968)
• Court: Georgia Supreme Court
• Parties: John R. STRICKLAND, Sr., et al. v. GEORGIA CASUALTY & SURETY COMPANY et al.

Page 421

162 S.E.2d 421

224 Ga. 487

John R. STRICKLAND, Sr., et al. v.GEORGIA CASUALTY & SURETY COMPANY et al.

No. 24636.

Supreme Court of Georgia.

July 2, 1968.

Rehearing Denied July 16, 1968.

Syllabus by the Court

1.There is a justiciable controversy in the instant case, and the petition states a claim upon which relief can be granted.

2.The words 'actual use' in an automobile liability insurance policy omnibus clause refer to the purpose to be served and not the operation of the vehicle.

3.Since the pleadings and evidence raised genuine issues of material facts, it was error to grant a summary judgment an issue a permanent injunction.

McDonald & Mills, J. C. McDonald, Ben Mills, Jr., Fitzgerald, George R. Jacob, Talbotton, for appellant.

William G. Scrantom, Jr., James H. Blanchard, Swift, Peace, Davidson & Chapman, Columbus, for appellee.

UNDERCOFLER, Justice.

This is an action by an insurer for declaratory judgment upon its automobile liability insurance policy.The appeal is from the striking of the defenses asserting that the petition fails to state a claim upon which relief can be granted and that it requests an advisory opinion, the granting of plaintiff's motion for summary judgment, and the issuance of a permanent injunction.

The petition alleges that the vehicle described in said policy was involved in a collision with another vehicle; that as a result thereof suits for damages have been filed against one Williams, the driver of the vehicle, one Carter, an occupant of the insured vehicle, both of whom are employees of the named insured, and the named insured; that at the time of the collision Williams did not have permission to drive the vehicle but had been specifically forbidden to drive it; that Carter knew of this prohibition and did not have permission to allow him to drive it; and that neither Williams nor Carter had permission to use said vehicle within the scope of his employment as alleged in said damage suits.The petitioner prayed for a judgment decreeing that it was not required to defend the suits against Williams and Carter or to pay any judgment that might be rendered against them therein.

The controversy is concerned with the following provision of the policy commonly referred to as the 'omnibus clause':

'Definition of Insured: (a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured' includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.'

The evidence shows that the named insured used said vehicle in his business; that it was a practice to allow Carter, one of his employees, to use the insured vehicle to transport himself and other employees to and from their homes and place of work and to keep the vehicle overnight at his home; that the named insured had forbidden Williams, also an employee, to drive the vehicle and this fact was known to Carter; that prior to the collision Williams, Carter, and others, after leaving their work went 'joyriding' in the vehicle, but at the time of the collision the vehicle was being driven by Williams with Carter accompanying him and was proceeding from Williams' home to Carter's home along the road normally traveled.The evidence is conflicting as to whether or not Carter had permission from the named insured to use the vehicle on this occasion.There is no evidence as to whether the named insured's spouse had or had not granted such permission.

1.In a declaratory judgment action, 'Matters which may be fairly inferred from the facts alleged may be regarded as sufficiently pleaded as against a demurrer.'Anderson on Declaratory Judgments (2d Ed.), 742, § 318.We find that the petition alleges that neither the named insured nor his spouse had granted any permission, either express or implied, to Williams or Carter, to use the vehicle.Accordingly, there is a justiciable controversy in the instant case and the petition states a claim upon which relief can be granted.Mensinger v. Standard Accident Insurance Co., 202 Ga. 258, 42 S.E.2d 628;St. Paul Fire & Marine Insurance Co. v. Johnson, 216 Ga. 437, 117 S.E.2d 459.SeeDitmyer v. American Liberty Insurance Co., 117 Ga.App. 512(1), 160 S.E.2d 844.Therefore, Enumerations of error numbers 7 and 8 are without merit.

2.The question is raised as to whether or not coverage under the omnibus provision of the policy is extended where the vehicle is being used for a permitted purpose by a driver expressly prohibited from operating it.In our view the answer must be determined by the meaning of the words 'actual use' as contained in the omnibus clause.

'The cardinal rule of construction (of contracts) is to ascertain the intention of the parties.'Code§ 20-702.'Words which admit of a more extensive or more restrictive signification must be taken in that sense which will best effectuate what it is reasonable to suppose was the real intention of the parties.'17 Am.Jur.2d 639, § 247.

Initially, we see no distinction between the words 'actual use' and 'use.'The omnibus clause requirement that the 'actual use' of the automobile must be with the permission of the named insured has not been a matter of particular discussion in the great majority of the cases * * * and it appears that the courts ordinarily have not regarded that term, as distinguished from the word 'use' as being one of special significance.'4 A.L.R.3rd 29, § 3(a).

The word 'use' has two meanings which are pertinent to this inquiry.In one sense it relates to the operation of the vehicle.In the other sense it relates to the purpose served by the vehicle.Appellee contends that the policy requires...