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COTTON STATES MUTUAL INSURANCE COMPANY et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
43705.
Declaratory judgment. Bulloch Superior Court. Before Judge Usher.
BELL, Presiding Judge.
Where the owner of a motor vehicle loaned it to another, a third person was using the vehicle with permission of the owner within the meaning of the omnibus clause of the owner's automobile liability insurance policy provided it was being used for a permitted purpose, regardless of whether the third person had the owner's express or implied permission to arrive.
State Farm Mutual Automobile Insurance Company brought this action for declaratory judgment against Cotton States Mutual Insurance Company, J. Roy Kelly, Fred Hagins, and Alvin and Saundra Kicklighter.
The petition showed that on December 1, 1965, Saundra Kicklighter, while operating an automobile owned by her husband, Alvin Kicklighter, was involved in a collision with a pickup truck driven by Fred Hagins and owned by Kelly. Saundra and Alvin Kicklighter each filed a suit for damages against both Hagins and Kelly. On the date of the collision the Kicklighter vehicle was covered by an automobile insurance policy issued by State Farm and providing protection against uninsured motorists. The other vehicle was covered by a policy issued by Cotton States. Cotton States contended there was no liability coverage of the collision because Hagins was operating Kelly's vehicle without the owner's permission. State Farm took the contrary position, contending that since the policy issued by Cotton States provided liability coverage for operation of the vehicle by Hagins, State Farm would not be obligated under the Kicklighters' uninsured motorist's coverage.
The policy issued by Cotton States, in defining persons insured with respect to the owned vehicle, included "any other person using such automobile, provided the actual use thereof is with the permission of the named insured, and is within the scope of such permission," in addition to the named insured and any relative resident in the same household.
The depositions and affidavits considered on the hearing of plaintiff's motion for summary judgment showed that Johnny Hagins (father of Fred Hagins) lived with his wife and children on Kelly's farm, and had been employed by Kelly for three years as a "wage hand" to do farm labor. About a week or ten days before the collision Kelly lent the pickup truck to Johnny Hagins, whose car was not in operating condition, until the latter could have the car repaired. At the time of the collision, Johnny Hagins and his son Fred were in the truck going to feed and water Kelly's hogs. This was one of the duties of the employment. Fred went with him to keep him company and to do the driving because Johnny was not feeling well. The evidence was not conclusive as to whether Fred Hagins occupied the position of a servant of Kelly when the collision occurred, but it was clear that Hagins was operating the vehicle without express permission or express prohibition by Kelly.
The trial court granted plaintiff's motion for summary judgment, declaring that coverage was extended to Hagins under the omnibus provision of the policy issued by Cotton States. Defendants Kelly and Cotton States took this appeal from that judgment.
The omnibus clause used in the policy before us is substantially similar to the one dealt with in Strickland v. Ga. Cas. &c. Co., 224 Ga. 487 (162 SE2d 421). The Supreme Court, interpreting the term "actual use" as contained in the omnibus clause, held that those words referred to the purpose for which permission was given and not to the operation of the vehicle. Pp. 489-492. As to the distinction between "using" and "operating" an automobile, see Anno. 160 ALR 1195, 1204.
In several cases in which this court considered the issue whether a person other than the original permittee was using a loaned automobile with permission of the owner, the court apparently proceeded on the assumption that "use" of the automobile, within the meaning of the omnibus clause, included its manner of operation. See Western Cas. &c. Co. v. Strozier, 67 Ga. App. 41 (19 SE2d 433); Drake v. General Acc. &c. Corp., 88 Ga. App. 408 (77 SE2d 71); Maryland Cas. Co. v. U. S. Fidelity &c. Co., 91 Ga. App. 635 (86 SE2d 801). It is not necessary to overrule those cases, but we wish to point out that the assumption implicit in them is an erroneous one in view of the holding of the Supreme Court in the Strickland case.
The owner of the vehicle, Kelly, did not have specific knowledge that Fred Hagins was assisting his father with chores on the farm. It appeared also that Fred was a minor, 17 years old, and was not licensed to drive a motor vehicle. These facts would tend to refute the idea that operation of the vehicle by him was with implied consent of the owner. However, under the Strickland case, it would be irrelevant whether or not Fred was operating the vehicle with Kelly's permission. It would be irrelevant even if he had been expressly forbidden to drive the vehicle. Under any reasonable construction of the evidentiary matter considered on motion for summary judgment, it appeared that if Johnny Hagins was not granted a general use of the truck without restriction, at least he had permission to use it for the purpose of his employment. The depositions and affidavits show without issue that the vehicle was being used for that purpose at the time of the collision, though it was being operated by one without express permission, and probably without implied permission to drive it. As the vehicle was being used for a permitted purpose, coverage was extended to Fred Hagins under the omnibus clause of Kelly's automobile insurance policy.
The court did not err in granting plaintiff's motion for summary judgment.
Judgment affirmed. Hall and Quillian, JJ., concur.
Hitch, Miller, Beckmann & Simpson, Luhr G. C. Beckmann, Robert S. Lanier, Allen & Edenfield, Ralph U. Bacon, for appellees.
Neville & Neville, W. J. Neville, Anderson & Sanders, for appellants.
ARGUED JUNE 4, 1968 -- DECIDED OCTOBER 7, 1968.
Friday May 22 18:25 EDT


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