*1
843
on the same facts. This follows because
burglary
conviction
indictment would
necessary
support
"the evidence
the second
(Roberts
State, &
Copenhaven
have sustained the first”
sufficient,
8, 11),
plea
and "the
is
whenever
acquit...
autrefois
second case
be the same transaction
proof shows
”
Accord,
State,
Id.
Holt v.
p.
(acquittal
12.
Argued September 17, 5, Decided October Hudson & Montgomery, David R. Montgomery, for appellant. Hancock, Nat Attorney, District for appellee.
48204. UNITED STATES FIDELITY & GUARANTY
COMPANY v. BOYETTE et al. May September 8, Submitted Decided Rehearing denied October Owens, Owens & Hilyer, Seymour S. appellant. Parrish,
Edward for appellees. coverage question Judge. appeal under policy This involves Clark, public liability private the containing standard (g) apply: any To "This person by any while maintained or used or trailer in the automobile or otherwise involved . .” business. *2 public
Harnage carried a refer as "car owner” whom we will Guaranty Company liability policy Fidelity with United States & wagon. Boyette, personal hereafter on referred to as "service station policy Chevrolet station his operator,” liability a similar carried Mutual Automobile the State Farm Insurance Apparently, personal Company. this was his policy contained the same exclusion as was because his State Farm though Boyette policy U. was in in car owner’s S. F. & G. the policy This exclusion stated "This the service station business. (g) apply: any or while To trailer maintained any person employed or otherwise or used engaged . .” in the Both contained automobile business. " special definition: 'Automobile business’ means storing selling, repairing, servicing, occupation or of automobiles.” his insured
The automobile owner left Chevrolet service greased stipulation agreed of facts station to be and serviced. Harnage customer, [the "As accommodation to his Jack promised Boyette, operator] [the L. service owner], L. Sr. station Harnage Harnage Jack to return motor to Jack vehicle Harnage’s place employment. Boyette, After L. had L. Sr. wagon, Boyette, he, L. L. serviced said Chevrolet station Sr. Boyette, Harnage L. and L. Sr. automobile to Jack (R. 54), driving purpose” had a for that when he collision with personal injuries car in which sustained Carol another brought operator against Hall. She suit both the service station plaintiff damages arising owner for from collision with recovering judgment jointly against a therein final service operator car owner in the total amount of station stipulation $7,270.20. does not contain complaint paid judgment and does not show who one-half paid by operator but does state that one-half the service station attorney in the who also incurred fees sum of defense $500 of that action. brought by operator station
The instant suit was service G., owner’s the U. S. F. & that both and State Farm which had issued the service station its him public judgment paid by for the one-half of the liability policy, plus expense. fee attorney $500 presented by stipulation
This matter was of facts to the court jury. judge decision without the intervention The trial of fact. The accepted stipulation constituting findings as court’s finding company law was that neither liability reciting relieved of under the exclusion that "The court plaintiff concludes matter of law that Boyette, delivering the Harnage, automobile to its owner at the time of the was, law, alleged as a matter casualty agent Harnage Harnage was not employed engaged business; was, accordingly plaintiff Boyette acting agent Harnage, (R. 70). automobile business.”
Since the insured automobile an "owned under automobile” the U. S. F. & G. contract and a "non-owned automobile” under the State Farm court further ruled State Farm would only be liable for excess As coverage. primary coverage limits of U. S. F. & G. sufficed to the entire pay judgment *3 exonerated State participated ap- Farm which has not peal. Held:
1. This is the fourth case which this court has been called upon to consider of this applicability "automobile business” exclusion In previous clause. the three no we ruled there was coverage. The first of these decisions Indemnity was Public Co. of Yearwood, Newark v. among which is those cases from a number of cited in 7 jurisdictions Blashfield (3d Ed.) 315.16, Automobile Law & Practice page holding that there is no liability upon the insurer where the incident occurs while one in the specified driving, though class is even the driver might be acting specific and for request the benefit of the insured. The Yearwood page case reasons at 647 that it is "While true that of insurance should construed so attain be as to the object of the insurance and most favorably to the insured and yet 'the contract of insurance should be construed so as to carry out the true intention of the parties’ [Code citations]; other every rule of contract, construction including insurance contracts is subservient to this one [citations]. ordinary legal meaning of employed words in an insurance policy must be taken into consideration.[Cit.]” McBride, decision, Allstate Insurance Co. v. our next the Yearwood 415), recognized it was court decision. The it was a two-one not a because precedent on a narrower the exclusion was based out that there pointed
also in the McBride case where the than that policy in the provision in the case sub similar to that contained language exactly McBride appeal, policy as in the instant business.” This definition by what was meant "automobile defined servicing, selling, repairing, occupation "The or reads: automobiles,” page 594 that saying storing parking or Accordingly, we held "plain unambiguous.” this was possession to an automobile in the applied exclusion after the work had been time it road tested garage at the completed. policy language, the same exactly
In our next case with Cas. Co. v. Northwestern Safeco his automobile to a a car owner who took the facts involved to his was then driven agency for Chrysler-Plymouth The collision agency. of the auto by employee of work returned to the auto occurred while the automobile was out that pointed to commence the This court dealer employed "Use another while gist by of the exclusion was Page 211. Thus engaged in the automobile business.” employee it the auto dealer’s applicable possession in his working on the car at the time was actually agency to the automobile transportation the sole the exclusion. came within plain 210 to restate the page
In that case this court undertook at apply' meaning provisions policy to be: "This policy’s while used under the section to an owned automobile liability any person servicing, occupation selling, repairing,
in the business or storing, automobiles.” same explanation
This restatement our court clearly applies now under consideration service station an automobile to its owner *4 fact, completing In in a similar situation which in presented Universal Underwriters Ins. Co. v. Northwestern (111.1969) Co., 306 437 that the return FSupp. pointed out by of the automobile to the residence requested owner’s integral part providing owner was an of the business a service "by engender good of convenience to will.” the insurer in the case at bar is seeking recovery The party
847 the service station and not the insured. The service he operator’s possession servicing station the car was continued in the station while service as an accommodation. ruling here in with in general principle
Our
is
accord
stated
Practice,
4372,
7
Insurance Law &
where
Appleman
the author
§
"Under
says:
the standard
automobile
a limitation
is
policy,
to the
applied
coverage of the omnibus
so as not
to extend
station,
over
coverage
garage,
to a service
public
agency,
sales
shop, or
public
place,
establishment
has rightful
custody
during
of the vehicle
its
maintenance,
operation,
use
an
employee thereof. This does
not mean that the
protected
named insured is not
if liability should
imposed upon
be
him
being
used;
vehicle is
so
it
prevents
insurer
from becoming
liable
reason of judgments
recovered
such an establishment.”
conformance
this quotation
Appleman,
from
we wish make clear
nothing
opinion
this
shall be
deprive
construed
the insured
automobile
coverage
owner from
if
held
he be
liable for the acts
of the driver. See
Insurance,
also 7 AmJur2d
125
Automobile
§
and 13 Couch on Insurance
45:982
45:986.
§§
our
Under
it is not
ruling
to consider the
necessary
question
Wilson,
agency
but it would
from
Pressley
appear
App.
(156
(1)
SE2d
to a
delivery
mechanic for the
of repairs creates a bailment
relationship
with the mechanic
independent
contractor.
addition to
cited
therein
Cleveland,
(200
this point
Graham v.
184);
see
Oil
Speed
Jones,
Co.
Calhoun v.
SE2d
Clark,
Fisher v.
760);
249);
Evans, car, coverage insurance effective this because the which became involved in traffic mishap returned within to the the exclusion clause of the policy. provided exclusion clause that no coverage would be if afforded at the injury the time of the insured being "maintained by any person or used business.” (Emphasis supplied). stipulated It was
case that time of the traffic incident to the car *5 having repairman the auto completed, had been (Emphasis accommodation. a matter the owner returned to supplied.) Georgia cases and three relies on cites and majority different quite facts are in each of which foreign judice. sub in the case from the facts distinguishable
readily Yearwood, v. Indemnity Co. In Public being the automobile was to whether 232), question no there was repairman, the automobile in the business used used, time the being so that it was stipulated by course, the exclusion son. Of plaintiffs killed ran over and coverage. thus prevented clause in 415), McBride, In Allstate Ins. Co. being road-tested injury the time of automobile at timing chain. after the installation contractor independent an business,” "while Clearly such use was coverage. prevented the policy clause in and the exclusion Ins. Nat. Cas. Co. Northwestern Safeco transport first to was used place to the owner’s of business place the áutomobile owner from (an to the driver the car relinquished then work; the owner his purpose repairman) of the auto employee repaired, to be repairman, of the auto of business place it to such auto traveling towards occurred while and the collision the auto employee to carrying The act of place. business; repairman’s of the auto part held to be a repairman was coverage policy prevented and the exclusion clause case. case, to wit Universal foreign opinion also cites Milwaukee, 306 Ins. Co. of Co. v. Northwestern
Underwriters owner, returned to the a car was in which case FSupp. drove employee who during such return and it was held But the facts business. engaged in the automobile the car was readily are different quite the Universal are Universal, judice. in the case sub from the facts distinguishable of business place to the automobile supra, the owner returned him, September about noon on had loaned repairman a car such completed, but 8, 1965, repairs had been up his car after pick some completed until not be repairs he would was told made one having the owner’s In view of during time the afternoon. picking business for the place of trip repairman’s to the — — the auto completed finding his car up obligated repairman the car to to deliver became mishap. This in a traffic while enroute the car was involved completely case sub this case from the differentiates quite judice from those different But in the case sub the facts majority relies, for here of the four cited cases on which each repairman, stipulated and the it was repairs owner repairman completed, accommodation that the "as the owner where return the car to his customer” would repairman’s gone course, to the the owner could have worked. Of *6 repairs up place picked after were his car of business repairman completed, (and to his customer” the "as accommodation but — part part not as a of the contract not as therefor) making repairs paid consideration of agreed strictly This accommodation. to return the car as a matter of — driving part repairing such as was not a the — place repairman’s but was of business would have been auto repairs an completed, of accommodation to the owner after act repairman money had earned the due for and after the promised, no recourse If he had failed to return the car as except to the car owner to tell would have been available repairman owner, as he that he had failed to "accommodate” had said he would do. by any person
Thus, "maintained or used person engaged in the ” person Any automobile business... who could drive repairman, automobile, performed have not an auto could this service as an accommodation to the owner. driving the automobile the owner’s of work towards injury "employed or otherwise at time of the engaged was not at that time contrary, business,” in the automobile but to the performing owner, after an act of accommodation to the completion repairs repairman of the to the automobile. paid repairing car, it to to be not for owner. policy, writing easy
It would have been for the when meaning "engaged term, to define the of the language business,” if it wished this extended to include language car to then it could have added return substantially policy, follows, to wit: "As used language 'engaged shall be held to in the automobile business’ repairs include the return of the automobile to the owner after completed.” tedium have Then be relieved of the been we would business” in the automobile "engaged as to what inquiring return includes the extends, and whether means, how far it insurer But the completed. are to the owner of the car it could when ambiguous, language vague to leave this elected easily. all doubt so removed have vague or that are couched terms policy is an insurance
When strongly most construed must be ambiguity ambiguous, policy, wrote experts whose company, the insurance insured, bought simply who in favor of strongly and most & Acc. Ins. it. See Colonial writing part had no policy and Life Raynor Croom, Co. v. Heritage Ins. American of insurance ... is that rule general
this court held: "The to be object in favor construed liberally are to be except when the of the insured and in favor accomplished to allow but unambiguous clear and unmistakably is so meaning.” Georgia cases the three out previously pointed have
We on, on, cited and relied foreign and the relied their clearly distinguishable and are opinion, applicable Further, foreign as to the facts from the case sub from other states course, by decisions this court is not bound Court. courts, Supreme the U. S. except decisions from federal Lines, Lane, Eastern Air 459; Thompson Thornton v. *7 not one in the United The cited case is binding court. and is in no wise Supreme States Court and would affirm the majority I dissent from therefore holding that the insurance court in of the lower judgment in this case. coverage was effective ADAMS SMITH. Adams, Ted Lynn Smith, sued Judge. plaintiff, Lowell
Evans, he fell when defendant, by plaintiff received injuries because of defendant, as driven of an automobile from the front fender judgment hunting rabbits. Verdict they appeals. and defendant favor plaintiffs were rendered evidence, his version of brief sets forth Defendant’s are rendered this, and judgment where a verdict such as the evidence judge, trial court, approved by the lower