39881 | Ga. Ct. App. | Apr 2, 1963
Lead Opinion
1. Where on a motion for summary judgment it appears that the question is one of law and the pleadings disclose no genuine issue as to any material fact, the motion may be granted with or without supporting affidavits. Dillard v. Brannan, 217 Ga. 179" court="Ga." date_filed="1961-09-07" href="https://app.midpage.ai/document/dillard-v-brannan-1322837?utm_source=webapp" opinion_id="1322837">217 Ga. 179 (3) (121 SE2d 768). The decisive question here being the interpretation of an insuring clause in an automobile service station liability policy, the petition of the insurer for declaratory judgment together with the attached policy and admissions contained in the answer forms a sufficient basis for deciding the case.
2. The disputed clause of this insurance policy commits the company “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 . . . caused by accident and arising out of the ownership, maintenance or use of the premises for the purpose of an automobile service station . . . and all operations necessary or incidental thereto; and the use in connection with such operations of any auto
The trial court did not err in granting the motion for summary judgment in favor of the plaintiff insurance company which brought this action for declaratory judgment.
Judgment affirmed.
Concurrence Opinion
concurring specially. I agree with the majority that under the terms of the insurance policy here no coverage was afforded to the operation by Peterson of his mother’s car. I think, however, that it should be observed that there
In her affidavit Mrs. Peterson asserts that the son, 17 years of age, lived in the home with her, and that: “On September 14, 1959, my son took my 1949 Ford automobile to have the car greased and the oil changed. He took the car to be serviced at Bob’s Truck Terminal where he worked at that time. When my son took my car to be serviced a charge was always made for the service done on the car at Bob’s Truck Terminal.” In his affidavit the son testified: “I lived with my mother. . . I was employed by Bob’s Truck Terminal ... as service station attendant. I sometimes took my mother’s vehicle out to the truck stop to have the oil changed and for a grease job. In other words, I would have the car serviced at the truck stop. On September 14, 1959, I drove my mother’s car to have the oil changed, a grease job and a motor adjustment. I usually paid cash for the work done on the car. If for some reason I did not have the money . . . the operator . . . would make a ticket for the work and deduct it from my next pay check.”
It further appeared from Mrs. Peterson’s deposition that the son had customarily used another car, his, though registered in her name, in going to and from work at the Truck Terminal, but that on this occasion, and on the day before, his car was in a shop for repairs. On each of the two days young Peterson drove his mother’s car to work as he went at the beginning of the day, and back after completing the day’s work. The Truck Terminal was some seven or eight miles out from Savannah. There was no evidence that Bob’s Truck Terminal had any custom of sending for a customer’s car and returning it after performing a service on it, nor any that young Peterson, as the servant of Bell, was authorized to accept the mother’s car and take it to the station for servicing or to return it after servicing. There was no evidence that there was included in the charge for greasing, etc., any charge for taking the car to the station and returning it. It does not appear that Mrs. Peterson ever, at any time, had any contact with Bell, or that he offered or agreed to
Perhaps there was a bailment of the car from Mrs. Peterson to her son, but I can find nothing in the record to justify any finding that Bell was a party to that arrangement. There may have been a bailment from the son to Bell during the time the car was at the station if it was serviced, but if so it terminated when young Peterson retook possession of his mother’s car and started home.
If Bell received some economic benefit from the servicing of the car, that did not and can not, under the facts here, result in any bailment relationship between him and Mrs. Peterson. Cf. Maas v. Harvey, 200 La. 736" court="La." date_filed="1942-05-25" href="https://app.midpage.ai/document/maas-v-harvey-3475830?utm_source=webapp" opinion_id="3475830">200 La. 736 (8 S2d 683).
The facts and the situation before the court in Lobe v. Bankers Indemnity Ins. Co., 343 Ill. App. 500" court="Ill. App. Ct." date_filed="1951-05-09" href="https://app.midpage.ai/document/lobe-ex-rel-kozoil-v-bankers-indemnity-insurance-8874266?utm_source=webapp" opinion_id="8874266">343 Ill. App. 500 (99 N.E.2d 588" court="Ill. App. Ct." date_filed="1951-07-05" href="https://app.midpage.ai/document/the-northern-trust-company-v-cullop-1997984?utm_source=webapp" opinion_id="1997984">99 NE2d 588) are closely parallel with those here, while those in Maryland Cas. Co. of Baltimore v. Beckham, 163 Miss. 836" court="Miss." date_filed="1932-10-24" href="https://app.midpage.ai/document/maryland-casualty-co-v-beckham-3513087?utm_source=webapp" opinion_id="3513087">163 Miss. 836 (143 S 886) are greatly different. I think that Lobe is the better reasoned case, and would follow it.
Dissenting Opinion
dissenting. I dissent from the judgment in this case on the basis on which it is predicated. There would be no advantage in my expressing an opinion as to whether a bailment existed. I think the bailment question should also be decided now because if we do not, two petitions for certiorari could possibly be required.
The conclusion in this case should be reached in the light of
I think the majority in this case have made the same mistake as was made by the court in Lobe v. Bankers Indemnity Ins. Co., 343 Ill. App. 500" court="Ill. App. Ct." date_filed="1951-05-09" href="https://app.midpage.ai/document/lobe-ex-rel-kozoil-v-bankers-indemnity-insurance-8874266?utm_source=webapp" opinion_id="8874266">343 Ill. App. 500 (99 NE2d 588). In that case the court did not consider that part of the insurance policy which referred to the ownership, maintenance or use of the insured automobile for any purpose in connection with the business of the insured. The court based its conclusion on the provision of the policy, construed separately, to the effect that “this policy does not apply ... to any automobile owned by a member of the named insured’s family.” This interpretation of the ruling in the case next above is borne out by the statement of the court as follows: “Whether the automobile here involved at the time of the accident was used by the insured, Andrew Lobe, for business purposes in connection with his garage, we think is immaterial.” I think the decision in the Lobe case should have been based on the proposition that the bailed vehicle was used for business purposes not in connection with the bailment. The Beckham case, above referred to, construed the word “used” to mean to convert to one’s own services, and construed it to exclude that which was a direct part of the service to another and cited, 8 Words and Phrases, First Series, page 7228, et seq.