Dunn v. Travelers Indemnity Co.

120 S.E.2d 631, 103 Ga. App. 669, 1961 Ga. App. LEXIS 1030

• Court: Court of Appeals of Georgia
• Decided: April 27, 1961
• Docket: 38705
• Status: Published

Opinions

Carlisle, Judge.

1. The construction of a policy of insurance is for the court. Swett v. Life &c. Ins. Co. of Tennessee, 75 Ga. App. 732, 735 (44 S. E. 2d 518). Accordingly, where a policy of liability insurance issued to a named insured covering two described dump trucks carried the provision that the insurance company agreed with the insured, in consideration of the payment of the premium specified, and in reliance upon the statements in the declarations made a part of the policy, to provide bodily injury liability insurance arising out of the ownership maintenance or use of the trucks described, and where the occupation of the insured set forth in the declarations was that of “asphalt and gravel hauler," and where the purposes for which the automobile was to be used were “CL-7CA-Hauls for one concern — Wilkes Construction Company,” and where the policy contained the further provision that “the term 'commercial’ is defined as use principally in the business occupation of the named insured as stated in Item I, including occasional use for personal, pleasure, family and other business purposes,” such policy covered the use of the vehicles while hauling for Wilkes Construction Co. and occasional use for other business purposes.

2. Where the evidence adduced upon the trial of the case showed that at the time of the injury in question the named insured had been using the insured vehicle in hauling for Wilkes County, Georgia, and not for Wilkes Construction Co. for some two and a fraction days and that he had hauled during that period about 40 loads of dirt, or soil, on a road construction project, and that the insured vehicle had not been used to haul for Wilkes Construction Co. for several days prior thereto, that the j ob he was working on for Wilkes Construction Co. had “played out,” and there was no work to be done for that firm, such hauling for Wilkes County was not an occasional use for other business purposes as defined in the policy, so as to extend the coverage provided by the policy to that use. See Bankers &c. Ins. Co. v. Blackwell, 260 Ala. 463 (71 So. 2d 267, 270). The evidence showing such facts, the trial court did not err in entering a judgment and decree directing the jury to return a verdict for the plaintiff and in declaring that the policy did not afford coverage to the defendant Calloway while he was using said truck in hauling goods or materials for any person, or persons, companies or corporations other than Wilkes Construction Co., and that the defendant Dunn was not protected by such insurance on account of injuries arising out of such operation of the vehicle and that the plaintiff insurance company was not required to defend Calloway in a pending suit brought by Dunn to recover from Calloway on account of such injuries.

3. The defendant Calloway introduced no evidence to sustain his plea that the contract of insurance be reformed, and the trial court did not err, therefore, in overruling such plea.

4. The rulings above made dispose of the case, and it is unnecessary to consider the grounds of the motion for a new trial.1

Judgment affirmed.

All the Judges concur, except Felton, C. J., Townsend, P. J., and Nichols, J., who dissent, and Eberhardt, J., not participating. Decided April 27, 1961 Rehearing denied May 12, 1961. Walton Hardin, Robert E. Knox, for plaintiffs in error. Harry L. Greene, Clement E. Sutton, contra.