Opinion
34607, 34621.
DECIDED MAY 27, 1953. REHEARING DENIED JUNE 12, 1953.
Declaratory judgment. Before Judge Hendrix. Fulton Superior Court. February 25, 1953.
James A. Branch, Thomas B. Branch, Jr., for plaintiff in error.
Haas, Hurt Peek, Newell Edenfield, contra.
The evidence authorized a finding that the plaintiff was an insured within the meaning of the omnibus clause of the liability-insurance policy issued by the defendant, and the court erred in directing a verdict for the defendant and in denying the amended motion for new trial in case Number 34607. For reasons stated in the opinion the court did not err in overruling the general demurrer to the petition in case Number 34621.
DECIDED MAY 27, 1953 — REHEARING DENIED JUNE 12, 1953.
Mrs. Lucile Drake petitioned the Fulton Superior Court for a declaration of her rights under a liability-insurance policy issued by General Accident, Fire Life Assurance Corporation, Limited. The petition alleged substantially: that the plaintiff's husband owned a 1948 Chevrolet automobile; that such automobile was a family car and was used by both the plaintiff and her husband; that on or about July 27, 1951, said automobile was in need of repairs, and the plaintiff's husband took it to J. L. Weddington, Jr., Inc., a garage, for the purpose of having the necessary repairs made; that upon taking the automobile into the garage for repairs, W. F. Sewell, the person in charge of the garage, loaned the plaintiff's husband the garage's 1935 Chevrolet automobile to use while his automobile was being repaired; that no restriction whatever was put on the use of the loaned 1935 Chevrolet automobile; that on or about July 27, 1951, the plaintiff was using the loaned automobile when she had a collision with another automobile; that as a result of such collision the occupants of the other automobile involved in the collision have sued the plaintiff to recover damages they received in such collision; that prior to and at the time of such collision, J. L. Weddington, Jr., Inc., had a liability-insurance policy issued by the defendant covering the operation of the 1935 Chevrolet automobile; that the plaintiff is a person defined as "Insured" by the terms of said liability-insurance policy, and is entitled to the rights and benefits arising under such policy; that the provision of the policy under which she claims her rights and benefits as an insured is as follows: "III. Definition of Insured. With respect to the insurance under Coverages A, B and D the unqualified word `Insured' includes the named Insured and also includes . . . (2) any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named Insured or with his permission"; that after the collision the plaintiff gave notice to the defendant as provided by the policy; that the defendant contends that it is not obligated to defend the plaintiff under the terms of the policy, and that it will not be obligated to pay any judgment that may be rendered in favor of the parties suing the plaintiff up to the face amount of the policy; that the situation presented by the facts hereinabove set out and the conflicting contentions of the parties is an extremely doubtful one and presents a proper case for the declaration of the rights of all parties hereto with regard to the said insurance policy.
The defendant's general demurrer to the petition was overruled. At the close of the evidence the court directed a verdict for the defendant. The plaintiff's amended motion for new trial, containing the special ground that the court erred in directing a verdict, was overruled and the plaintiff excepts. The defendant by cross-bill of exceptions assigns error on its exceptions pendente lite to the overruling of its general demurrer.
The question for determination on the main bill of exceptions is whether there is sufficient evidence to authorize a jury to find that the plaintiff was using the loaned automobile with the "permission" of the insured within the meaning of the omnibus clause of the policy. Roy Drake, the plaintiff's husband, testified that he took his own automobile to J. L. Weddington, Jr., Inc., to have certain repairs made thereon. Upon learning that the repairs would take some time, he inquired of the company's agent if he might borrow one of the company's automobiles to use while his own automobile was being repaired. He further testified: "Regarding what was said on this occasion when I borrowed the `35 Chevrolet about me borrowing an automobile — there wasn't but a few words said. Something was said about I wanted the car fixed and couldn't get it fixed that day, and I said something about a car to use, and they said the service truck was out, it would be about 5 before it got back, and I told them that I couldn't wait that long, I wanted to get on back to the house, and he said, well, the only thing that they had was a `35 Chevrolet out on the sales lot and I could use that if I wanted to, and he turned around to one of the mechanics and said go out there and get Roy that Chevrolet, and he took and drove it up in the front door, and I got in it and came home, and he said, `If you find anybody that wants to buy it for a hundred dollars while you have got it down there,' said, `sell it to them.' I have told you substantially everything that was said at the time I borrowed the car. It was a conversation, as I would say, of less than five minutes, three or four or five minutes. Bill turned and walked off and was talking to somebody else on the job when I left. And I got in the car and came on home. . . Mrs. Drake used it [witness's automobile] the same way I would use it, for a family car. . . I did not tell Mr. Sewell [the insured company's agent] that the only thing I wanted to use the car for was to go home, go home from J. L. Weddington Company to my place of business, and home that night and back to pick up my car that was being repaired. . . I did not tell Bill Sewell I wouldn't let anyone drive it. I borrowed the car to use as I used my own car."
William F. Sewell, the insured's agent, testified in part: "I told Mr. Drake at first that we did not have a car, we were very short of cars at that time and didn't have anything that we could let him use, but Mr. Drake says that, come back and says — of course, he was a good customer — and said that he needed one awfully bad, that his place of business was at least a mile or more from his home, which I knew was true, and that he would not have any way to get home, that he closed his business around twelve or one o'clock at night and he didn't want to have to walk and carry his day's receipts with him. So I did tell him then that I did have an old `35 model Chevrolet back there, that, if that was all he wanted with it, I would let him have it to go home in and use it to go home in that night and come back to his work and come back to get his car when it was finished; if that was all he was going to use the car for, that I would let him have that particular car, and I didn't have any understanding that it would be used for any other purpose than to go home. Mr. Drake did not tell me that he wanted the car for the use of himself and his family while his car was being repaired. The family wasn't mentioned in it. It was just to use it. He was to use it just to go back to his place of business, and when he closed up that night to go home and carry his day's receipts and come back to work in it the next day."
The testimony for the plaintiff is to the effect that no restrictions or limitations were put on the use of the loaned automobile, and that the plaintiff's husband was given general use of the automobile. On the other hand, the testimony for the defendant is to the effect that the automobile was loaned for an expressly restricted purpose, that of going between Mr. Drake's home and his place of business. The evidence presented a jury question on this issue. If the jury believed the plaintiff's version, they would have been authorized to find that the plaintiff was using the loaned automobile with the "permission" of the insured within the meaning of the omnibus clause in the policy. The plaintiff's husband borrowed the automobile to use while his own automobile was being repaired. The insured knew that the plaintiff had use of and did use her husband's automobile. The insured's agent testified: "I did know that Mrs. Drake drove their automobile. She had been in and out of our place numbers of times making purchases of various things." "Permission" as used in an omnibus clause such as the one here under consideration means either express or implied permission. Hodges v. Ocean Accident c. Corp., 66 Ga. App. 431, 436 ( 18 S.E.2d 28); Maryland Casualty Co. v. Williams, 184 Fed. 2d 983. Where the plaintiff's husband took his automobile to the insured for repairs, and the insured loaned him an automobile to use while his automobile was being repaired, and the insured did not restrict or limit the use of the loaned automobile but gave the plaintiff's husband general use of such automobile, and the insured knew that the plaintiff used her husband's automobile, there arose an implied permission for the plaintiff to use such loaned automobile for the purposes for which she had used her husband's automobile. See Harrison v. Carroll, 139 Fed. 2d 427, 429 (7); Aetna Life Ins. Co. v. Chandler, 89 N.H. 95 ( 193 A. 233). This is not an application of the "first instance permission" doctrine which was held not to be applicable in Georgia in Hodges v. Ocean Accident c. Corp., and Maryland Casualty Co. v. Williams, supra. We are not holding that any person to whom the plaintiff's husband could have loaned his own automobile had implied permission to use the loaned automobile, but that, under the circumstances of this case, the plaintiff had such implied permission if the jury believed the plaintiff's evidence rather than that of the defendant.
The defendant makes the following point: "Now we concede that the testimony of Drake makes a conflict about this evidence insofar as it involves what he (Drake) said to Sewell. For example, when later confronted with a signed statement Drake undertook to repudiate what he had allegedly said to Sewell, but he never denied what Sewell, the lender, said to him, and this of course is the vital part of the case. It therefore stands undisputed in the record that the lender told the borrower at the time of the loan that he would let him have the car `to go home in that night and come back to his work and come back to get his car when it was finished, if that was all he was going to use the car for. . .'" The point is not well taken. In testifying as to the conversation between Drake and Sewell, Drake did not relate as part of the conversation that Sewell told him that he could use the loaned automobile if all he wanted to use it for was to travel between his home and his place of business. Drake further testified: "I have told you substantially everything that was said at the time I borrowed the car." Such testimony, if the jury believed it rather than that of Sewell, would have authorized the jury to find that Sewell did not restrict the use of the loaned automobile.
The issues of the case presented questions for a jury's determination, and the court erred in directing a verdict for the defendant.
The cross-bill of exceptions complains that the court erred in overruling the general demurrer to the petition. The petition alleged a justiciable issue as to the rights sought to be declared, and therefore stated a good cause of action for a declaratory judgment as against a general demurrer. Georgia Casualty c. Co. v. Turner, 87 Ga. App. 618 ( 74 S.E.2d 665); Parks v. Jones, 88 Ga. App. 188 ( 76 S.E.2d 449).
The court erred in overruling the amended motion for a new trial in case Number 34607.
The court did not err in overruling the general demurrer to the petition in case Number 34621.
Judgment reversed on the main bill of exceptions and affirmed on the cross-bill. Sutton, C. J., and Worrill, J., concur.