The defendant insurance company appeals from a judgment on the pleadings in favor of the plaintiff, Edward Booker. The defendant issued an insurance policy containing an uninsured motorist endorsement in favor of Shorty’s Sanitation Service, Inc. The policy covered the commercial vehicles used-by Shorty’s, whose business the policy described as "Sanitary Pick Up” and "Garbage Ashes or Refuse Collecting including completed operations.”
A claim under this uninsured motorist endorsement *4 arose on August 28, 1972, when the plaintiff was employed by Shorty’s Sanitation Service and was acting within the scope of his employment. The plaintiff parked the garbage truck that he was driving close to the curb of the road, got out of the truck, and obtained a large garbage collection container from the truck. He then walked to a point about thirty feet from the garbage truck, where he was struck by an uninsured vehicle. The plaintiff received judgment against the driver and owner of the uninsured vehicle in the amount of $27,500. Then this suit was initiated against the defendant with the plaintiff contending that he was covered under the uninsured motorist endorsement and seeking judgment in the amount of $10,000.
1. The uninsured motorist portion of the policy describes persons insured to include "any other person while occupying an insured highway vehicle.” The uninsured motorist statute, Code Ann. § 56-407.1 (b) (Ga. L. 1963, p. 588, as amended) describes insured persons to include "any person who uses, with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies.” Where there is a conflict in an insurance policy and the uninsured motorist statute, the statute controls.
State Farm &c. Ins. Co. v. Murphy,
2. Since use of a vehicle, determines who is insured for purposes of the statute, the definition of the word "use” becomes a central issue in this case. In Federated Mut. Implement & Hardware Ins. Co. v. Gupton, 241 FSupp. 509, 511 (E.D.S.C., 1965), an action identical to the instant case in all material respects, the court said: "Exact definition of the term 'use’ is elusive, and is not capable of a definition which will leave everyone 'comfortable.’ Whether or not an injury arose from the 'use’ of a motor vehicle within the contemplation of a liability policy or statute depends upon the factual context of each case. In this setting the term does not imply 'remoteness,’ but does extend beyond actual physical contact. And it would seem to extend at least to the point, beyond physical contact, where control over the instrumentality is easily or reasonably at hand, and *5 particularly when it is still being 'utilized.’ ”
3. In Gupton, supra, a service station employee was using a pickup truck owned by his employer to deliver gasoline to a stalled automobile. The driver of the stalled automobile was an uninsured motorist. The employee was pouring gasoline out of a gasoline can into the automobile of the uninsured motorist when that vehicle suddenly backed into him, causing his injuries. The court held that the employee was covered by the employer’s insurance policy because, although outside of the truck, he was "using” the truck within the meaning of the uninsured motorist statute. In Gupton it should be noted that the uninsured motorist statute in issue was adopted by the South Carolina legislature in 1962, one year prior to the initial enactment of the Uninsured Motorist Act by the General Assembly of the State of Georgia. The South Carolina Act defines the term "insured” in the exact same words as does Code Ann. § 56-407.1.
Another persuasive case is Owens v. Ocean Acc. & Guarantee Corp.,
4. Several cases with similar factual situations in which the definition of "use” was in issue were cited by the defendant, and must be distinguished from Owens, Gupton, and the instant case. In Ins. Co. of North America
*6
v. Perry,
"Whether or not an injury arose from the 'use’ of a motor vehicle ... depends upon the factual context of each case.” Federated Mut. Implement & Hardware Ins. Co. v. Gupton, 241 FSupp. 509, 511, supra. Although we are hesitant to delineate an arbitrary distance from a vehicle beyond which a person can no longer be "using” it, apparently the delivery of a warrant 164 feet away was determined by the Virginia court to be too distant. Furthermore, in the language of Gupton, the delivery of a warrant is not necessarily an "essential transaction in connection with the use” of a police cruiser as is the use of a stretcher to an ambulance, a gas can to a service station pickup truck, or a garbage collection container to a dump truck.
In
Morgan v. New York Cas. Co.,
In
Ocean Acc. &c. Corp. v. J. B. Pound Hotel Co.,
5. In defining the word "use” of the garbage truck, we must look to the contemplation of the parties in entering into the insurance contract. It is clear from the insurance contract that this vehicle was to be used in the business of "Sanitary Pick Up,” and that this included "Garbage Ashes or Refuse Collecting including completed operations.” Common sense tells us that the parties certainly contemplated that the garbage truck would be loaded and unloaded and that the garbage to be loaded on said truck would be hauled to the truck by a garbage collection container and that, in many instances, it would be necessary for the driver to walk down the side of the road near his truck in order to collect the garbage.
The intent of the parties involved was considered to be of importance in Gupton, supra, where the court said: "It is all too obvious that it was within the contemplation of the parties that the truck would be used as a service station truck and that the operation of delivering gasoline on the highways was a necessary and incidental adjunct... The hazards an employee exposes himself to in venturing upon the highway when using the truck for purposes of the delivery of gasoline is a situation which the Act was designed to cover.” 241 FSupp. p. 512.
Judgment affirmed.