Carter v. State Farm Mutual Automobile Insurance
Carter v. State Farm Mutual Automobile Insurance
Opinion of the Court
Valerie Carter (a plaintiff in a negligence action against Leroy Berk, the driver of an automobile belonging to Cornelius Hines) appeals from the grant of summary judgments in favor of Governmental Employees Insurance Company, Berk’s insurer, and State Farm Mutual Automobile Insurance Company, Hines’ insurer, in a declaratory judgment action brought by Government Employees and in which action State Farm was made a party defendant.
The applicable provisions of the Government Employees’ policy defined a non-owned automobile as "an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative.” It
The State Farm policy provided under "definition of insured” the following: "(a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word rinsured’ includes the named insured if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either. The insurance with respect to any person or organization other than the named insured or such spouse does not apply: (1) to any person or organization, or to any agent or employee thereof, operating an automobile, sales agency, repair shop, service station, storage garage or public parking place, with respect to any accident arising out of the operation thereof, . . .” (Emphasis supplied.)
1. There is a dispute as to whether the permission given by Hines to Berk to drive the automobile was general or limited under the testimony of Berk. Hines denied giving any permission of any sort. Berk’s testimony in one deposition could be construed to mean that Hines gave permission to drive the automobile for certain purposes only, which purposes did not include driving to deliver the automobile to Hines after repairing it; or construing this testimony most strongly in favor of
If we should be privileged, upon appeal from a decision on motion for summary judgment, to weigh Berk’s testimony or construe it most strongly against him, we might conclude the permission to drive was limited; however, on motion for summary judgment neither the lower court nor this court is privileged to weigh the evidence nor resolve seeming contradictions, nor construe the evidence in favor of the movant. That is a jury’s prerogative and their’s only. See in this connection Brown v. Sheffield, 121 Ga. App. 383, 389 (173 SE2d 891); Sanfrantello v. Sears, Roebuck & Co., 118 Ga. App. 205 (163 SE2d 256); Burnette Ford, Inc. v. Hayes, 124 Ga. App. 65, 66 (183 SE2d 78). "That this conflict may have been occasioned by conflicting testimony of the same witnesses, whether parties or not, does not alter the result.” Mathis v. R. H. Smallings & Sons, 125 Ga. App. 810 (189 SE2d 122). We conclude, therefore, the evidence does not demand a finding the automobile was driven on the occasion in question without the permission of Hines.
2. The next question is whether the evidence demands a finding the automobile at the time was being operated by Berk as an automobile repairman or service station operator so as to exclude coverage as to Berk under either one or both of the policies; or whether he was operating it for personal purposes disconnected with his business which would not necessarily exclude coverage under the exclusions claimed in this regard. If he was using the automobile and using and operating it as an automobile repairman or service station operator, both policies would exclude coverage as to Berk even if permission was given to drive the automobile on the occasion in question.
The evidence was without dispute that Berk was operating a service station and auto repair business, that Hines had left his automobile with Berk to be repaired and that Berk had not heard from Hines, a soldier at Fort Benning, for about two weeks after, repairing the automobile, and had been unable to contact him by phone.
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.