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Lawskills.com Georgia Caselaw
TOUCHTON v. ALLSTATE INSURANCE COMPANY.
47935.
Action on insurance policy. Lowndes State Court. Before Judge Connell.
QUILLIAN, Judge.
Under the provisions of the accidental death and dismemberment insurance policy in the case sub judice, the term "driving" a vehicle is not synonymous with "operating" it.
Plaintiff, appellant here, purchased a policy of accidental death and dismemberment insurance from the defendant (appellee). While the policy was still in full force and effect, the plaintiff was involved in an incident which resulted in the loss of his right hand and forearm.
The affidavit of plaintiff describes the circumstances under which the casualty occurred. Briefly stated, the plaintiff owned certain equipment used by him in the harvesting of corn including a tractor, a corn harvester, and a trailer. On the day of the accident in question, the plaintiff was harvesting corn on the farm of a Mr. Daugharty, pursuant to an agreement with Mr. Daugharty whereby the plaintiff would be paid a certain amount of money for each bushel of corn gathered. The plaintiff was driving the tractor and conducting the harvesting process by himself without help from any other person.
Photographs stipulated into evidence by counsel depict the items of equipment owned and operated by the plaintiff at the time of the casualty. One of the photographs shows how the corn harvester was connected to the tractor and how the trailer was connected to the harvester. Other photographs reveal other details relating to the subject equipment.
The plaintiff had been harvesting corn on the property throughout the morning of the day he was injured. Immediately prior to the incident in question, an ear of corn became caught between certain rollers in the harvester and caused the harvester to work improperly. The plaintiff stopped the forward motion of the tractor and the harvesting assembly which he was driving and stepped down from the tractor to make an inspection. In doing so, he left the motor of the tractor running and left the power take-off engaged in operating position so that the moving parts of the harvester continued to function. As the plaintiff was standing behind the harvester he reached to extract the ear of corn apparently causing the problem, at which time his right hand was caught in the rollers of the machinery, which eventually resulted in the loss of his right hand and forearm.
The plaintiff presented a claim to the defendant in due course based upon the loss of his hand. The defendant paid to the plaintiff the sum of $6,000, claiming that the loss sustained by the plaintiff was covered only in Part III of the policy which provided for payment for loss of life of $12,000 and payment of $6,000 for loss of a hand. The plaintiff contended, and now contends, that he is entitled to payment of an additional $9,000 from the defendant under Part II of the policy. Part II of the policy provides in part as follows: "If an insured person sustains an injury: . . . 3. while driving for hire a land motor vehicle; Allstate will pay the applicable benefit specified for the resulting loss, provided no more than the applicable Principal Sum shown for Part Il in the Schedule of Insurance shall be paid for all losses sustained by an insured person as a result of any one accident."
The policy provides that a party shall be paid $30,000 for loss of life Under Part II of the policy and one-half of that amount ($15,000) for loss of a hand under Part II of the policy. Thus, the plaintiff contends that he is entitled to $15,000 for loss of a hand covered by Part II of the policy; that he has only been paid $6,000 by the defendant and therefore is entitled to a further payment of $9,000.
Both parties filed a motion for summary judgment. The court sustained the defendant's motion and denied the plaintiffs. From these rulings an appeal was filed and the case is here for review.
The sole question for determination is whether the plaintiff was at the time of injury "driving for hire a land motor vehicle," so as to bring him within the provisions of Part II, Sub-Part 3 of the policy.
The plaintiff contends that "operating" and "driving" a vehicle are synonymous under the terms of the policy and therefore if it should be determined that the plaintiff was operating the vehicle he would be entitled to recover under Part II of the policy. With this contention we do not agree. To "operate" a vehicle and to "drive" a vehicle have two different meanings. As is stated in Flournoy v. State, 106 Ga. App. 756, 758 (128 SE2d 528): "While the word 'drive,' as used in statutes of this kind, usually denotes movement of the vehicle in some direction (see Webster's Unabridged Dictionary), the word 'operate' has a broader meaning so as to include not only the motion of the vehicle but also acts which engage the machinery of the vehicle that, alone or in sequence, will set in motion the motive power of the vehicle. Houston v. District of Columbia, 149 A2d 790; Bradam v. State, 191 Tenn. 626 (235 SW2d 801). See general annotations, 42 ALR 1498; 49 ALR 1389; 68 ALR 1356; 142 ALR 555; 29 Words & Phrases, 537 (Operate), p. 545."
In the present case while the plaintiff might have been in process of operating the vehicle at the time of his injury he was not driving it so as to bring him within the provisions of Part II of the policy.
The court's rulings on the motions for summary judgments were correct.
Judgment affirmed. Bell, C. J., and Deen, J., concur.
Young, Young & Ellerbee, Cam U. Young, for appellee.
Tillman, Buice, McTier & Coleman, John T. McTier, for appellant.
SUBMITTED FEBRUARY 6, 1973 -- DECIDED APRIL 9, 1973.
Friday May 22 13:57 EDT


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