Summary
In Suggs, as in the case sub judice, the police officer was at the time of the relevant incident, on duty in an automobile owned by the City.
Summary of this case from Roey v. Allstate InsuranceOpinion
39308.
DECIDED MARCH 1, 1962. REHEARING DENIED MARCH 12, 1962.
Action on insurance policy. Pierce Superior Court. Before Judge Roddenberry.
Garrett McDonald, Frank B. McDonald, Jr., for plaintiff in error.
Kopp Peavy, John G. Kopp, contra.
1. A party, plaintiff or defendant, may, under the provisions of the act of 1959 ( Code Ann. §§ 110-1201, 110-1202) move for a summary judgment on the pleadings with or without supporting affidavits.
2. An automobile owned by a municipality and used by its policeman while on duty patrolling the city streets is not a "private motor driven automobile" within the terms of an accident insurance policy which provides insurance against death resulting from injuries received "by the collision of or by accident to any . . . private motor driven automobile in which the insured is riding or driving."
DECIDED MARCH 1, 1962 — REHEARING DENIED MARCH 12, 1962.
Bobbie Lee Suggs, as the administrator of the estate of Dessie Suggs, filed suit against Interstate Life Accident Insurance Company seeking to recover $1,000, besides penalty and attorney's fees on a limited accident insurance policy issued by the company to Archie Suggs, in which Dessie Suggs, his wife, was named as beneficiary. It was alleged that Archie Suggs died on May 20, 1960, as the result of injuries received in the collision with a truck of an automobile in which the insured was riding on the streets of Blackshear, Georgia, and that due proof of death had been furnished to the insurance company as required by the terms of the policy. Defendant answered, admitting that the policy was in force, that the insured had died as the result of injuries received while riding in an automobile on the streets of Blackshear, and that proof of death had been made, but further pleaded that the vehicle in which the insured received his injuries was not a "private motor driven automobile" and that by the terms of the policy sued on insurance coverage was extended only if the insured died as the result of injuries received "by the collision of or by any accident to any . . . private motor driven automobile in which the insured is riding or driving"; that at the time the insured was fatally injured he was, in his capacity of a policeman of the City of Blackshear, riding in an automobile owned by the city for the use of its policemen, and that he was at the time on police patrol duty. Plaintiff amended his petition striking his claim for penalty and attorney's fees and moved for a summary judgment on the pleadings. To a judgment thus entered for the plaintiff, the defendant excepted.
1. A party, plaintiff or defendant, may, at an appropriate time as provided in the act of 1959 ( Code Ann. §§ 110-1201, 110-1202), move for a summary judgment on the pleadings, with or without supporting affidavits. If it should appear from the pleadings that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law, such should be entered.
2. Whether the plaintiff here was entitled to a judgment against the defendant on the pleadings depends upon whether the deceased insured was, under the terms of the policy, insured against the eventuality that occurred, i.e., whether he was insured against injury or death resulting from a collision between a city owned vehicle in which he was riding as a police officer and at a time when the vehicle was being used for police-patrol duty. If the vehicle was a "private motor-driven automobile" at the time of the injury, there was insurance coverage and the plaintiff was entitled to his judgment; but, if it was not such a vehicle, there was no coverage and a judgment for the plaintiff was unauthorized.
Admittedly the vehicle was publicly owned, for it was the property of the City of Blackshear. But ownership alone may not be determinative of the issue here involved. Most public conveyances, such as trains, airplanes, buses, and taxicabs, are privately owned. Nevertheless they are regarded as public means of transportation because they are devoted to a public use. A publicly owned vehicle may, at times, be devoted to a private use. If, for instance, the vehicle here had been in use at the time as a means of taking a private trip by the insured such as going fishing, or going home for lunch, we might be constrained to hold that it was being devoted to a private use and while upon such use a private vehicle. But such was not the case. The patrolling of a city street by a police officer is a public function. It is the performance of a public duty, and is for the benefit of the general public.
We find no case, in Georgia or elsewhere, in which the exact situation here was dealt with. See generally, Annot. 38 ALR2d 867. In Life Cas. Ins. Co. v. Benion, 82 Ga. App. 571, 572 ( 61 S.E.2d 579) it was observed that, "The only significance the word `private,' used in the phrase `private motor driven automobile,' has, is to distinguish automobiles owned and operated for private purposes from those used for public or semi-public purposes, such as public conveyances." The issue there, however, was whether a privately owned automobile entered in a stock car race was within the insuring provisions of the policy.
The only case which appears to have a similar factual situation is State ex. rel. Tobin v. Independent Life Ins. Co., 181 Tenn. 373 ( 181 S.W.2d 349) where it was held that a city fire truck was not within the provisions of a policy where the terms were similar to those here involved. There, as here, the vehicle was publicly owned and was being used by city employees for public purposes.
The terms of the policy are clear. As we see it the insured did not receive his fatal injuries while riding in a "private motor-driven automobile." The granting of a summary judgment on plaintiff's motion was thus error.
Judgment reversed. Carlisle, P. J., and Russell, J., concur.