Cotton States Mutual Insurance v. Falls

Court of Appeals of Georgia

Cotton States Mutual Insurance v. Falls

152 S.E.2d 811, 114 Ga. App. 812

CourtCourt of Appeals of Georgia

DecidedDecember 6, 1966

Docket42147, 42148

StatusPublished

Cited by35 cases

This text of 152 S.E.2d 811 (Cotton States Mutual Insurance v. Falls) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cotton States Mutual Insurance v. Falls, 152 S.E.2d 811, 114 Ga. App. 812 (Ga. Ct. App. 1966).

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Per Curiam.

1. The defendant insurance company contends that the evidence demanded a verdict finding that no coverage was provided by the policy of insurance under various provisions of the contract. One such contention is that the policy expressly excluded coverage for any automobile, other than that described in the contract, which was “owned by or furnished for regular use” of the insured.

The plaintiffs cite State Farm Mut. Auto. Ins. Co. v. Bates, 107 Ga. App. 449 (130 SE2d 514), and National-Ben Franklin Ins. Co. v. Prather, 109 Ga. App. 459 (136 SE2d 499), to support their contention that whether the automobile came under the exclusion relied upon by the defendant insurer was a question for the jury. In both of these cases it was held by this court that the verdict against the insurer was authorized by the evidence. While in the present case the evidence was conflicting as to some immaterial points, yet when construed most favorably to the plaintiffs, the evidence demanded a finding that the automobile was not covered by the contract of insurance sued on.

As to the correctness of a directed verdict in such circumstances, see Skinner v. Braswell, 126 Ga. 761 (2) (55 SE 914); Sanders Mfg. Co. v. Dollar Savings Bank, 110 Ga. 559 (35 SE 777); and Norris v. Coffee, 206 Ga. 759 (58 SE2d 812).

The evidence in the present case as to “furnishing of the automobile for the regular use” of the insured was not conflicting, it being shown without contradiction that the automobile was left by the insured’s step-son with the insured and his wife without intent to reclaim it some months before the date of the collision out of which the judgment against the insured arose with permission to use the automobile without restriction and that it was in fact used without restriction [814]*814by the insured whenever and for whatever purpose he desired to use it. In the special concurrence in the Bates case, which was adopted in the Prather case, it was held that there must be a furnishing for regular use and also regular use before the exclusion applied. This is not what the contract of insurance provides. The contract excludes coverage for any automobile furnished for regular use. Obviously the exclusion in the contract of insurance clearly is based on the purpose for which the automobile is furnished rather than on the quantum of use. “Courts have no more right by strained construction to make the policy more beneficial by extending the coverage contracted for than they would have to increase the amount of the insurance.” Davis v. Jefferson Standard Life Ins. Co., 73 F2d 330, quoted approvingly in Prudential Ins. Co. of America v. Kellar, 213 Ga. 453, 458 (99 SE2d 823). A proper construction, if indeed any construction is needed, of the exclusion in the contract is that to come within such exclusion there must be a furnishing for regular use. Any holding in the Prather and Bates cases, supra, contrary to what is here held is expressly overruled. Nor does “furnished for regular use” mean furnished for the exclusive use in the sense that the insured must use such automobile to the exclusion of any other automobile. Thus, the fact that the insured owned an automobile in operative condition which he also used would not prohibit the exclusion from applying. Where, as in the present case, the insured was the exclusive user of the automobile and he-—-and only he— determined when and for what purpose he would use it, and he did in fact use it for several months prior to the collision, a finding that it was “furnished for his regular use” so as to bring it within the exclusion contained in the insurance contract was demanded. Accordingly, the judgment of the trial court overruling the defendant’s motion for a judgment non obstante veredicto must be reversed with direction that a judgment be entered for the defendant in accordance with such motion.

2. The remaining enumerations of error in the main appeal are moot and the judgment complained of in the cross appeal, complaining of the refusal of the trial court to submit the question of attorneys’ fees to the jury was not error.

[815]*815 Judgment reversed with direction in case number 4®14I; affirmed in case number 4&148.

Bell, P. J., Frankum, Jordan, Hall, Eberhardt and Pannell, JJ., concur. Felton, C. J., and Been, J., dissent. Quillian, J., not participating.

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Per Curiam.

1. The defendant insurance company contends that the evidence demanded a verdict finding that no coverage was provided by the policy of insurance under various provisions of the contract. One such contention is that the policy expressly excluded coverage for any automobile, other than that described in the contract, which was “owned by or furnished for regular use” of the insured.

The plaintiffs cite State Farm Mut. Auto. Ins. Co. v. Bates, 107 Ga. App. 449 (130 SE2d 514), and National-Ben Franklin Ins. Co. v. Prather, 109 Ga. App. 459 (136 SE2d 499), to support their contention that whether the automobile came under the exclusion relied upon by the defendant insurer was a question for the jury. In both of these cases it was held by this court that the verdict against the insurer was authorized by the evidence. While in the present case the evidence was conflicting as to some immaterial points, yet when construed most favorably to the plaintiffs, the evidence demanded a finding that the automobile was not covered by the contract of insurance sued on.

As to the correctness of a directed verdict in such circumstances, see Skinner v. Braswell, 126 Ga. 761 (2) (55 SE 914); Sanders Mfg. Co. v. Dollar Savings Bank, 110 Ga. 559 (35 SE 777); and Norris v. Coffee, 206 Ga. 759 (58 SE2d 812).

The evidence in the present case as to “furnishing of the automobile for the regular use” of the insured was not conflicting, it being shown without contradiction that the automobile was left by the insured’s step-son with the insured and his wife without intent to reclaim it some months before the date of the collision out of which the judgment against the insured arose with permission to use the automobile without restriction and that it was in fact used without restriction [814]*814by the insured whenever and for whatever purpose he desired to use it. In the special concurrence in the Bates case, which was adopted in the Prather case, it was held that there must be a furnishing for regular use and also regular use before the exclusion applied. This is not what the contract of insurance provides. The contract excludes coverage for any automobile furnished for regular use. Obviously the exclusion in the contract of insurance clearly is based on the purpose for which the automobile is furnished rather than on the quantum of use. “Courts have no more right by strained construction to make the policy more beneficial by extending the coverage contracted for than they would have to increase the amount of the insurance.” Davis v. Jefferson Standard Life Ins. Co., 73 F2d 330, quoted approvingly in Prudential Ins. Co. of America v. Kellar, 213 Ga. 453, 458 (99 SE2d 823). A proper construction, if indeed any construction is needed, of the exclusion in the contract is that to come within such exclusion there must be a furnishing for regular use. Any holding in the Prather and Bates cases, supra, contrary to what is here held is expressly overruled. Nor does “furnished for regular use” mean furnished for the exclusive use in the sense that the insured must use such automobile to the exclusion of any other automobile. Thus, the fact that the insured owned an automobile in operative condition which he also used would not prohibit the exclusion from applying. Where, as in the present case, the insured was the exclusive user of the automobile and he-—-and only he— determined when and for what purpose he would use it, and he did in fact use it for several months prior to the collision, a finding that it was “furnished for his regular use” so as to bring it within the exclusion contained in the insurance contract was demanded. Accordingly, the judgment of the trial court overruling the defendant’s motion for a judgment non obstante veredicto must be reversed with direction that a judgment be entered for the defendant in accordance with such motion.

2. The remaining enumerations of error in the main appeal are moot and the judgment complained of in the cross appeal, complaining of the refusal of the trial court to submit the question of attorneys’ fees to the jury was not error.

[815]*815 Judgment reversed with direction in case number 4®14I; affirmed in case number 4&148.

Bell, P. J., Frankum, Jordan, Hall, Eberhardt and Pannell, JJ., concur. Felton, C. J., and Been, J., dissent. Quillian, J., not participating.

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152 S.E.2d 811, 114 Ga. App. 812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cotton-states-mutual-insurance-v-falls-gactapp-1966.

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