Horne v. Government Employees Insurance

207 S.E.2d 636, 132 Ga. App. 230, 1974 Ga. App. LEXIS 1659

• Court: Court of Appeals of Georgia
• Decided: June 13, 1974
• Docket: 49130
• Status: Published

Opinions

Pannell, Presiding Judge.

On March 6, 1972, during the running of an annual "bathtub race” within the confines of Southern Technological Institute, a "motorized bathtub” left the designated course and struck appellant’s decedent, causing injuries which subsequently resulted in her death. Suit was brought to recover medical and funeral expenses under a medical payments provision of a contract of insurance. Defendant’s motion for summary judgment was granted and plaintiff appeals. Held:

1. Plaintiff enumerates that the court erred in granting the motion for summary judgment. The propriety of the court’s action centers about an interpretation of language used in the medical payments provision of the insurance policy in question. Therein, the insurer agreed, in general, to pay the medical and funeral expenses occasioned "through being struck by an automobile or by a trailer of any type.” An exclusionary clause denied liability if the insured was injured "while occupying or through being struck by (1) a farm type tractor or other equipment designed for use principally off public roads while not upon public roads. . .”

Initially, we note that this is a "Family Automobile Policy.” It defines, inter alia, "Temporary Substitute Automobile,” "Private Passenger Automobile,” "Utility Automobile,” "Farm Automobile,” and "Trailer.” That the bathtub had wheels, a steering mechanism, motor and brakes is conceded by the parties, but that does not make it an automobile. The latter term is a general name adopted by popular approval of all manner of self-propelled vehicles designed primarily for use on highways and streets and capable of carrying passengers and loads, but it does not connote all manner of motor vehicles. As was said in Bullard v. Life &c. Ins. Co., 178 Ga. 673, 674 (173 SE 855): "In arriving at the true interpretation of a contract, words usually bear their 'usual and common signification.’ In common parlance, or according to usual signification of the word, an 'automobile’ is not a 'motorcycle.’ Both are 'motor driven’ vehicles, but not all 'motor driven’ vehicles are 'automobiles’ nor are all 'motorcycles.’ Had it been the intention of the parties that the insurance should cover accidents in riding a motorcycle, the policies would properly have used the words 'motor-driven vehicles.’ ” See also Whiddon v. Cotton States Mutual Ins. Co., 109 Ga. App. 137, 138 (135 SE2d 521). The "motorized bathtub” in the instant case was designed and used for the purpose of racing annually on the University’s Campus Drive, it clearly was not designed or used primarily for the transportation of persons or property. It is not an "automobile” as that term is used in the contract, although it may be a motor vehicle as defined by Ga. L. 1953, Nov. Sess., pp. 556, 557 (Code Ann. § 68-1502 (1) (b)).

Plaintiff also argues that ¿/the "motorized bathtub” falls within the exclusionary clause, supra, because it constituted "other equipment,” it was being used on a public road. We disagree. The sole purpose for which the bathtubs were designed and operated was for racing on Campus Drive, an elliptical roadway within the confines of the controlled and guarded property of the University, with the entrance and exit accessible only from Clay Street, a public roadway, and closed to normal traffic on race days. If Campus Drive is a public roadway, as plaintiff contends, the bathtub then did not constitute "equipment designed for use principally off public roads,” for it was designed for special annual use in racing on Campus Drive. Indeed, to hold that the parties intended to insure all manner of vehicles under this policy would strain construction and make the policy more beneficial by extending the coverage contracted for and this we cannot do. Cotton States Mutual Ins. Co. v. Falls, 114 Ga. App. 812, 814 (152 SE2d 811); Prudential Ins. Co. of America v. Kellar, 213 Ga. 453, 458 (99 SE2d 823). We think that the phrase "designed for use” carries with it the logical connotation of useful purpose, and was intended to cover farm type cultivators, harvesters, harrowers, etc., normally employed in farming and frequently encountered on public roads. It, of course, is axiomatic that if Campus Drive was not a public road the exclusion would apply.

Argued March 6, 1974 Decided June 13, 1974 Rehearing denied June 28, 1974 Ross & Finch, Charles E. McCranie, A. Russell Blank, for appellant. Bunaway & Haas, John A. Bunaway, for appellee.

Judgment affirmed.

Bell, C. J., Eberhardt, P. J., Clark and Webb, JJ., concur. Been, Quillian, Evans and Stolz, JJ., dissent.