27 S.E.2d 764 | Ga. Ct. App. | 1943
1. A "customer" may be defined as "one who regularly, customarily, or repeatedly makes purchases of, or has business dealings with, a tradesman or business establishment; a buyer or purchaser; a patron." "A buyer, purchaser, or patron; a person with whom a business house, or business man, has regular or repeated dealings."
2. The provision in a policy of insurance issued to a motor company insuring its customers while riding in or operating a motor vehicle of the motor company against liability for damages to third parties, includes a person, who had an arrangement with the motor company whereby he was regularly and repeatedly furnished an automobile and six gallons of gasoline a week to be used by him in calling upon and locating prospective purchasers of automobiles from the motor company, and who had procured more than 125 prospects who had purchased automobiles from the motor company in the 25 months period next preceding the automobile accident in which such person was involved while driving one of the automobiles of the motor company by its permission under the arrangement just referred to, such person not being an employee of the motor company, but receiving commissions on the sales of automobiles by the motor company to purchasers procured by him as compensation *170 for his services in this connection, and which automobile accident caused the death of the plaintiff's son.
3. The plaintiff's traverse was not subject to demurrer on the ground that it was inconsistent and contrary to the position taken by the plaintiff in her suit against the defendant Johnson and the G. L. Hight Motor Company.
4. The court erred in sustaining the demurrer to the traverse.
The garnishee demurred to the traverse upon the grounds (1) that the allegations of the traverse fail to show that the garnishee was indebted to Herman Johnson; (2) that under the allegations of the traverse there was no relationship shown between the insured *172 as set forth in the policy on which the garnishee would be liable to the defendant, Herman Johnson; and (3) that said traverse showed that the suit filed by the plaintiff against Herman Johnson was a suit filed by her against Herman Johnson and G. L. Hight Motor Company in which she alleged that Herman Johnson was employed by G. L. Hight Motor Company, and that at the time of the accident he was engaged in the business of the motor company and acting within the scope of his employment, and the position of the plaintiff in said suit was inconsistent and contrary to the position taken by her in the traverse. The court sustained this demurrer and dismissed the traverse, and the plaintiff excepted.
There are two questions for determination: (1) Was Herman Johnson a "customer" of the G. L. Hight Motor Company, and consequently an insured under the provisions of the policy? (2) Would the fact that the plaintiff sued Herman Johnson and G. L. Hight Motor Company jointly, alleging that he was the agent and employee of the motor company, prevent her from maintaining her action on the traverse, on the ground that her position in the suit was inconsistent and contrary to her position in the traverse, wherein she contended that he was a customer of the motor company at the time her son was killed?
(1) The portion of the contract of insurance above quoted was entered into between the garnishee and the G. L. Hight Motor Company for the benefit of customers of the motor company, and to protect such customers while they were riding in or operating an automobile owned by the motor company against damages to third persons caused by the operation of such automobile. The plaintiff's son was killed by an automobile owned by the motor company while it was being operated by Herman Johnson, and her right to recover against the garnishee depends upon whether Herman Johnson was covered by the insurance policy. Whether he was covered by the insurance policy depends upon whether or not he was a customer of the motor company at the time the plaintiff's son was killed. The words used in the contract of insurance should be given their usual and common signification. Code, § 20-704 (2); North British Insurance Co. v. Tye,
(2) The fact that the plaintiff brought her suit against Herman Johnson and the G. L. Hight Motor Company jointly, contending that he was a salesman and the agent and employee of the motor company at the time of the accident, would not prevent her from *175 maintaining her traverse, wherein she contended that he was a customer of the motor company at that time, upon the ground that her position in the suit was inconsistent with and contrary to her position in the traverse. The garnishee was not a party to her suit against Herman Johnson and the G. L. Hight Motor Company, and the traverse does not show that the garnishee has been injured or prejudiced by the fact that the plaintiff brought her action jointly against the two defendants therein and obtained a judgment against only one of them. The fact that Herman Johnson was not acting as the agent of the motor company at the time the plaintiff's son was killed would not prevent him from being a customer of the motor company operating one of its motor vehicles at that time. Hodges v. Ocean Accident Guarantee Corporation, supra. The traverse set out a cause of action, and the judge erred in sustaining the demurrers and dismissing the traverse.
Judgment reversed. Stephens, P. J., and Felton, J., concur.