Public Indemnity Co. v. Yearwood

Sutton, J. The plaintiff brought suit against one Peabody for the homicide of her minor son, alleged to have been caused by the negligent operation of the defendant’s automobile by one Ingram. The defendant demurred to the petition, the demurrer was sustained, and that judgment was affirmed by this court, holding that Ingram occupied the status of an independent contractor at the time of the death of the plaintiff’s son. Yearwood v. Peabody, 45 Ga. App. 451 (164 S. E. 901). Peabody was named as the insured in a policy of automobile liability insurance. Thereupon the plaintiff brought suit against the insurer on said policy of insurance. The case was submitted to the trial judge on an agreed statement of facts, and judgment was entered against the insurer, the court holding that the policy of insurance covered Ingram at the time he was operating Peabody’s automobile and ran over the plaintiff’s son and killed him. To this judgment the insurer excepted on the ground that it was contrary to law and to the evidence. From the agreed statement of facts it appears that the insured had hired Ingram to repair his automobile, giving to Ingram permission to keep the automobile overnight; that while Ingram was operating the automobile in connection with hisorepair work thereon, he ran upon and killed the plaintiff’s son; that the policy of liability insurance was a regular standard form, and provided that the insurance protection therein provided for was extended so as to cover the operation of the automobile by any one with the permission of the named insured, in and about the business and pleasure of the named insured, but that such extension should not apply and be available to "any public garage, automobile repair shop,” etc. [647] While it is true that policies of insurance should be construed so as to attain the object of the insurance and most favorably to the insured and against the insurer, yet “the contract of insurant'.' should be construed so as to carrjr out the true intention of tie parties” (Code of 1910, §§ 2475, 4266); and every other rule of construction of contracts, including insurance contracts, is subservient to this one. Bridges v. Home Guano Co., 33 Ga. App. 305, 309 (125 S. E. 872); Clay v. Phœnix Ins. Co., 97 Ga. 44, 53 (25 S. E. 417). The ordinary and legal meaning of words employed in an insurance policy must be taken into consideration. North British &c. Ins. Co. v. Tye, 1 Ga. App. 380 (58 S. E. 110). So construing the policy' of automobile-liability insurance in this case, it is plain that the insurance protection provided thereby was not intended to cover the automobile driven by Ingram, the policy expressly providing that the insurance therein was not available to “any public garage,” or “automobile repair shop,” and there being no substantial difference, for the purposes of automobile-liability insurance, between an individual undertaking to repair an automobile for the owner thereof and a “public garage” or “automobile repair shop.” It necessarily follows that the judgment against the insurer in this case was contrary to law and the evidence, and the court erred in rendering the same. Judgment reversed. Stephens, J., concurs. Jenkins, P. J., dissents.