*1 present therefore case was evidence in the introduced in letters harmless. J., Stolz, J.,
Judgment Eberhardt, concur. P. affirmed. September 5, 29, 1973 Decided June Submitted appellant. Butler, E. for Albert appellee. Strickland, Solicitor, Jr., for
P.W. HOMES, et al. INC. v. PARNELL MAID 48407. MODERN Betty Judge. S. Parnell Parnell James G. Pannell, damages seeking Homes, Inc., for Modern Maid action an an alleged counts. The defendant’s of contract two breach summary judgment to the whole case for motion appealed. proper review, it for certificate overruled and Held. being adduced not of fact and the evidence material issues
There demanding finding defendant, court did for overruling summary judgment. motion for the defendant’s err Judgment Stolz, J., Eberhardt, J.,P. concur. affirmed. September 5, 1973. Decided Submitted June Maddox, Maddox,
Matthews, Smith, Walton, & James D. Shaw appellant. appellees. Wollstein, Wollstein, N. Terrell & Harold COMPANY v. CRAIN-DALY 48034. AMERICAN CASUALTY VOLKSWAGEN, INC. space Judge. fourth time in the short As this marks the
Clark, coverage years to decide a been called that our court has six policy,” "messenger insurers theft a standard under might clarifying fact, when one their contracts. well consider litigated jurisdictions from other number of cases considers the diversity facts decisions on similar matter and their on this Wonderland) (from Alice in and curiouser” it becomes "curiouser that occurred. has not heretofore such revision previous Home Store v. Our cases are Cleveland three 202), Co., 115 Ga. Ins. Fireman’s Fund Ins. Atlanta Tallow Co. v. 361), Co., Hawkins Iron &c. Co. v. Continental Ins. significant It is that the briefs filed in the last argued similarly presented appeal, to those in the instant namely: pleads *2 the insured in each instance their facts come within the Atlanta Tallow Co. case the insurer while contends Liquor their situation comes within the Cleveland Ave. Store ruling. opinion applied Our Hawkins Iron &c. Co. neither precedent though monetary two and instead ruled that even receipts glove compartment were stolen from the locked of the "storage insured’s locked truck that the facts there a constituted money "being situation” rather than one in which the conveyed by messenger.” constituting a The decisive item the ra- being parked tio decidendi fact the vehicle for an overnight period as contrasted ten with the minute interval which existed in the Atlanta Tallow Co. case. Liquor money
The Cleveland Ave. "A Store case ruled that loss zippered plastic in a case left on the front seat of an unlocked parked by messenger car front his house while he took "messenger time to eat conveyance” lunch is not covered” under custody” provisions. and "care and This court undertook in the Atlanta Tallow Co. case to discuss Liquor ruling separate opinions. Cleveland Ave. Store in four Judge Eberhardt who had written the Cleveland decision Ave. opinion dissented on the basis that his initial had "concluded protective custody money contemplated that the by care and personal possession messenger.” by the Ga. contract actual special respectively concurrences written by Judges accept Judge Deen Hall did not this conclusion. special joined by judges suggested Deen’s concurrence three practical necessity overruling "the [the it Cleveland Ave. Judge case].” P. 433. But who had concurred in that case agree prior did not decision should be overruled. Instead concurring opinion joined judges his two differentiated the Cleveland Ave. case its facts. This factual differentiation money messenger’s protective custody that "The was still in the (locked glove car) compartment during of a locked a 10-minute process being conveyed.” interval while in the P. 435. holding expressed The of the Atlanta Tallow Co. case as by eight judges only concurred in one dissent is that coverage occurring exists under such an insurance contract company
during used vehicle from a locked a ten-minute interval transport company employee funds. authorized summary judgment grant it was "error headnote recites theory money a insurer under either defendant 'custody’ being 'conveyed’ not in or that was employee at the time theft.” summary judgments. previous In the decisions were on three upon jury judgment
present appeal based from a testimony within the ambit the case verdict. Plaintiffs of the from the version Tallow Co. decision whereas Atlanta fitted it to insurer’s witnesses Cleveland ruling. employee that the theft testified Plaintiffs Store stop during company brief vehicle occurred from a locked during trip parts employer return some auto check from the bank. This was contradicted adjuster the insurer’s employee procured signed statement from the who had which assertion was left front door had been left unlocked investigating the crime. The the Atlanta detective confirmed employee explained illiteracy prevented him from that his reading having so informed the written document and he denied *3 insisting officer, he them all were had told doors upon the left hand door was unlocked. locked but return upon case the insurer moved for In reliance the Cleveland Ave. argued its Its counsel then and also directed verdict in urged behalf. presented by court that the insurance our facts brought adjuster city the case within the detective ruling. Liquor Since, however, sworn Ave. Store Cleveland testimony employee similar to the facts of Atlanta judge correctly con- ruled that Tallow Co. case the trial by tradiction in the two versions was for determination jury. requests in its
The two written to be included insurer then made upon jury requests were based Cleveland requests opinion. were denied. Both of these written plaintiff the amount The returned verdict for the being plaintiffs the amount established evidence appeal motion, this After a new trial followed. loss. denial of Held: plaintiffs employee testimony from the Because the ambit of the Atlanta Tallow Co.
factual situation within the declining a motion was correct in to sustain court refusing directed verdict for the insurer and
579 requests upon written based the Cleveland Ave. Store Accordingly 1, case. we rule enumerations numbers 2 and 3 to be without merit.
2.The fourth enumeration error asserts the erred in
submitting
legal
certain
rules for
of the
construction
charged
legal principle
against
contract of insurance was to be construed
insurer which
awas correct statement of the law taken
Fidelity
App.
McDonald,
from Southeastern
Ins. Co.
125 Ga.
v.
(188
162).
charged
ambiguities
SE2d
The court
394
further
favorably
in an insurance contract shall be construed most
strongly
toward the insured and most
the insurer. This
legal principle.
province
too is a correct
But
it
not the
unambiguous
to construe
contracts. In fact
is error to
jury. Empire
submit such
Engineering
Burrell
Mills Co. v.
530).
Co.,
&c.
18 Ga.
Glynn
to construe contracts is
the court. McCann v.
Lumber
(34
839);
Co.,
669,
199 Ga.
Turbeville,
SE2d
Carter
72).
App. 367, 369
SE2d
"The
a contract
law for the court.
(as
proper reading
Where
an
matter of fact is involved
word),
should find the fact.” Code
ambiguous,
§
Contracts,
20-701.
even when
are
be
construed
jury question
presented
the court and no
unless after
application
applicable
ambiguity
rules of construction an
(1)(159
Supply
Cook,
remains. Farm
Co. v.
116 Ga.
Chalkley
Ward,
policies being contracts,
Insurance
the decisions have held that
the matter of construction is for the court. Mass.
&c.
Benefit
Robinson,
Assn. v.
same as was used here in policy against favorably company construe the insurance requiring to the insured. This was held to be error a new trial. p.At said, 591 our court "The rules of law forth in set the Code respect are contracts framed for the guidance Except and direction of the courts. in cases where involved, there and where written words is tending of such words to show
is evidence parties way differently another in one understood jury any improper to submit Except cases it in such of the contract. to the construction as clearly give improper the court error and for regard contract manner in which the instruction with &c. are Davis United [Cits.]” accord should be construed. Life 488) Mergenthaler Co., 215 Ins. Linotype Printing &c. Co. v. Glover to submit the It error for was therefore jury. policy to the of the insurance of construction of this it is reason error case must be reversed 3.As this remaining unnecessary of error enumerations to deal with likely a re-trial. to occur which are not Eberhardt, J., J., Judgment Bell, J., P. P. C. Pan- reversed. J., Stolz, JJ, Evans, Deen, dissents. nell, Quillian and concur. September Argued April 6, 1973. Decided Handley, Russell, Killorin, Forbes, Gambrell, H. & David Wade appellant. Wedge,for Robert B. Harry Cashin, Jr., Cashin, Parker,
Harland, L. & Chambers appellee. holding Judge, majority dissenting. I dissent from
Evans, reversible trial court committed Division 2 of the on the and manner error as to its instructions interpreted. policies are which insurance majority opinion, relying upon Ins. Co. 1. The California 266), Blumburg, overlooks squarely judice, factual sub situation exception the later discussed; and overlooks within the therein Hwy. Dept. Co., 111 v. W.L. Const. in case of State Cobb 500), exactly point case sub with the which is majority, page supra, Blumburg case, at relied on holding, support of those but none three cases in of its cites erroneously a trial a reversal of three cases involves charging jury. Blumburg case, further, in the second judge to instruct headnote, "it error for the trial holds that they insurance contract should construe the ” judice, (Emphasis supplied.) company. trial In the case sub
581 they did not instruct should construe the reading charge and careful show that he will merely gave them the rules under which same construed. In was failing to tell was their to make the only meaning by construction the have could been point attached on this himself policy. so construed the exception. p. come Now we At the bottom of 591 the "
Blumburg question case holds: 'The of contract construction (as any of law for the court. Where proper matter of fact is involved word), reading of an should find § fact.’ 20-701. Code was no in the case to this There issue ” (Emphasis supplied.) applicable. instruction would have been But there was such an issue in the case sub Plaintiffs complaint, paragraph alleged agreed 2, as to what the defendant promised good indemnify. words, and to make and In other plaintiff alleging what the meant and what allegation, it insured. But defendant made a factual issue of this paragraph complaint, alleged plaintiffs and denied of2 allegation meant, as what was insured and what the plaintiffs part legal an incorrect on conclusion as to the effect of policy, allegations ignore provisions the policy and "said numerous of said specifically
and are denied.” By question answer, an made issue and of fact as interpretation policy, construction and did so in vague general imaginable, by referring the most manner provisions policy,” specifying "numerous of without or designating any particular provision. repeat, We an this made question issue of fact as to the This could pleadings have been removed from the as a of fact pre-trial leaving strike, motion to order, motion for requesting court, of the contract to that he construe same. But this was not done. factual as to pleadings. of left in course, Of properly pleadings. issues in a case are framed York v. (182 Stonecypher, 435, 181 Ga. 437 SE It has been held time judge may properly charge without number that a trial pleadings, regard issue made and this is without whether supported by such issue is evidence. The mere fact that it is made pleadings, an issue in the authorizes the thereon. Western Lochridge, 474); App. & A. R. 170 Ga. 219 SE s.c., 39 Ga. 582 (4) (146 776); R., A. L. 17 Ga. & v. Seaboard Matthews Co. SE (7a) (120 App. 1097); Knapp,
App. SE White v. 850); 796); SE Simms, Ga. R. SE &c. Co. v. Mopper, Oast v. Pollard, SE Hunt v. Sheats, 58 Ga. 84 Ga. Power Co. v. Ansley, L. R. Co. v. Atlantic C. App. 89 *6 exception charge comes within the Therefore, in this case the majority. Blumburg case, the relied on noted majority that of State A the 4. case overlooked (4)supra. Hwy. Dept. This v. W.L. Cobb Const. proper charge jury of the to the manner as that it is to holds among construing parties thereto differ the a contract where pari proper interpretation of materia the in themselves as to various contract contract should be construed most preparing judge charged jury provisions. that the the strongly against party the 830) (p. jury to construe it. He also instructed provisions of same in connection with other certain section section. obscurely (Note construing one further than that this went much word.) principle to held be a correct This was charge specifically law; held not to be error to so and was further authority, judge jury. Thus, did not commit under this error in the case sub Having pleadings real issue of fact as to the
5.
left in the
an
thing
plaintiff contending
policy,
one
contending something
denying
else, and
policy
proof,
making
provisions of the
as
reference to the various
way
charge
jury
then the trial
authorized to
on
in
is construed. This was
and manner which a
insurance
denying
injected
in
into the case
defendant’s own conduct
steps
taking
plaintiff',
no
attributed
pleadings, by
strike,
motion
remove
issue
fact from the
pre-trial conference,
for defendant
or otherwise. It is too late now
produces.
complain
which his own conduct
action of
State,
State,
48110. BARNETT et al. v. THOMAS. Presiding Judge. previous appeal involving