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Declaratory judgment; construction of insurance policy, etc. Hall Superior Court. Before Judge Kelley.
FELTON, Chief Judge.
The endorsement on an automobile liability insurance policy that "It is understood and agreed that there are no male drivers under 25 years of age driving this car," issued in consideration of a substantial reduction in premium, does not relieve the insurance company of liability as to damages caused by one isolated operation of the automobile by a male under the age of 25 years.
The New Hampshire Fire Insurance Co. instituted a declaratory judgment proceeding against Mrs. Wanda Buffington (formerly Mrs. Charles Irvin), Phillip Jerry Buffington, husband of Mrs. Wanda Buffington, and Mrs. Martha Sue B. Jenkins for the purpose of having declared the rights of the parties arising out of the issuance by the plaintiff of an automobile liability insurance policy to Mrs. Charles Irvin, who is now Mrs. Wanda Buffington. The facts revealed in the petition are substantially as follows: The policy was dated October 21, 1959, and insured Mrs. Wanda Buffington against (a) bodily injury liability, (b) property damage liability, (c) medical payments to each person, and (d) collision. The automobile covered was a 1959 used Ford, particularly described. On or about the 10th day of September, 1960, the automobile in question was being driven by Phillip Jerry Buffington who was at that time 19 years of age, at which time he lost control of the automobile, ran off the highway down a steep embankment and almost completely demolished the automobile. At the time of the wreck, there were in the automobile, in addition to the driver, Mrs. Wanda Buffington and Mrs. Martha Sue B. Jenkins, all of whom received personal injuries. Mrs. Wanda Buffington is claiming of petitioner the sum of $800 for damages to the automobile and has filed a proof of loss with the plaintiff. Ml of the occupants of the automobile are claiming medical expenses under coverage "C" of the policy and have employed attorneys to prosecute their claims. Mrs. Martha Sue B. Jenkins has employed attorneys to prosecute a claim for bodily injuries against Mrs. Wanda Buffington, who will file an action against Mrs. Wanda Buffington for damages for personal injuries unless enjoined from so doing until the questions raised by the petition in this case are settled. On the date of the policy the following endorsement was placed on the policy by an agent of the plaintiff to the following effect: "It is understood and agreed there are no male drivers under 25 years of age driving this car; and a return premium of $54.00 is hereby granted under this condition.
B. I. $24.00 Coll. 16.00
Total $54.00
Accepted By: Charles Irvin, Wanda Irvin
Witnessed: Mrs. H. D. Herrington
All other terms and conditions of this policy remain unchanged . . ." The prayers of the petition, among others were: "(d) that the court enter a judgment in said matter declaring that the terms, provisions and conditions of the policy and contract issued by petitioner to defendant, Mrs. Wanda Buffington, have been violated to the extent that said violation abrogates the contract of insurance issued by petitioner to defendant because of the facts and things heretofore set out, and, (e) that said policy and contract be declared null and void and that petitioner be relieved from any payment under said policy and that petitioner be relieved from defending any action growing out of said accident, because of the abrogation of said insurance contract by defendant, Mrs. Wanda Buffington allowing and permitting the defendant, Phillip Jerry Buffington to drive and operate her said automobile when he was only 19 years of age and in direct violation of her agreement with petitioner as contained in the above-mentioned endorsement." The defendants filed a general demurrer to the petition which was overruled by the court. The case was tried by the court on the petition and answer, and the court rendered a judgment on the merits in which he declared that the provisions and conditions of the insurance policy were violated to the extent that the violation abrogated the contract of insurance, and in which judgment the court declared null and void the said policy of insurance and relieved the petitioner from making any payment under the insurance clauses and provisions of said policy, and from defending any actions by any occupants of said automobile growing out of the incident of September 10, 1960. The defendants in the trial court except to the overruling of the general demurrer to the petition and to the judgment of the court finding against them on the merits of the issues.
1. The court did not err in overruling the general demurrer to the petition. The petition at least stated a cause of action for a declaratory judgment as to the question whether the plaintiff was obligated to defend the proposed action against the insured. Darling v. Jones, 88 Ga. App. 812 (78 SE2d 94); Georgia Cas. &c. Co. v. Turner, 86 Ga. App. 418 (71 SE2d 773).
2. Going strictly by the allegations of the petition and construing the petition most strongly against the plaintiff, the contentions of the plaintiff with reference to the endorsement and its meaning are based upon the fact that in one isolated instance the 19-year-old husband of the insured operated the automobile of the insured. It is contended that this isolated act violated the contract which the insured made with the insurance company in the endorsement set out above. It is contended by the plaintiff that the proper construction of the endorsement is that it is a contract by which Mrs. Buffington agreed that the insurance company would not be liable under the policy for any injuries inflicted by any male driver of said automobile under the age of 25 during the term of the policy, even though injuries were inflicted by a 19-year-old driver who drove the automobile only one time. A cardinal rule of construction of the endorsement, too well known to require support of citations, is that in cases of ambiguity, and we decidedly have one here, the construction must be against the insurance company. The endorsement does not say in unambiguous terms that no liability would exist as to damages arising out of the driving of the vehicle by one less than 25 years of age. The words "there are no male drivers under 25 years of age driving this car," reasonably construed, mean there were no such drivers who drove the car more than incidentally or on isolated occasions. It certainly cannot reasonably be construed to mean that "there are no drivers under 25 years of age who now drive the car and there are none who will even in isolated instances, or occasionally, drive it during the term of the insurance policy." We think that if the insurance company had intended such a meaning it would simply have provided in the policy that there would be no coverage as to damages caused by a driver under 25 years of age, or it would have made such a provision by an unambiguous rider. We think that the parties intended to exclude liability as to those drivers under 25 who with some degree of regularity drove the car. We think that the intention was to escape a continuous, regular risk due to young drivers and not to absolutely escape from such risks when they were infrequent and merely occasional. We could give many instances where we think that to say an insurance company intended to escape the risk of occasional driving by one under 25 would be palpably unreasonable. We repeat that we do not believe that the parties intended to exclude liability on the company's part in case of an isolated or even occasional driving by
a male under 25 years of age. We do not agree with the extreme conclusion reached in Kautz v. Zurich General Accident & Liability Co., 212 Cal. 576 (300 P. 34), in which it was held that an endorsement stating that an automobile is maintained and garaged at a particular place was not a continuing condition but applied only as of the date of the statement, or that in Mayor, Lane & Co. v. Commercial Cas. Ins. Co., 169 App. Div. 772 (155 NYS 75, 78), where the statement that "none of the automobiles herein described are rented to others" was held to apply only to the time of the statement. See Berry on Automobiles, Vol. 2 (6th Ed.) 2154; Huddy on Automobiles (5th Ed.) 830. Nothing herein stated should be construed as infringing on an insurer's right to make whatever contract it pleases so long as it is unambiguous and not against public policy.
The court did not err in overruling the general demurrer. The court erred in declaring that there was no coverage under the policy as to the damages and liabilities contended for in the petition.
Judgment affirmed in part and reversed in part. Bell and Hall, JJ., concur.
Whelchel, Dunlap & Gignilliat, Wm. P. Whelchel, contra.
Telford, Wayne & Smith, Tifton S. Greer, for plaintiffs in error.
Friday May 22 23:21 EDT

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