The court did not err in holding that the exclusion clause in the insurance policy does not apply in this case, and that the insurer was obligated to defend the damage action brought upon the policy issued by it to the defendant in the damage action.
This is the second appeal of this case. See Georgia Casualty & Surety Co. v. Turner, 86 Ga. App. 418
(71 S. E. 2d, 773). Upon further consideration of the case the trial judge rendered the following judgment: "The above-stated case came on regularly to be heard before the Court on previous assignment. The previous judgment of this Court, sustaining the general demurrers of the defendants Bond and Turner, was reversed by the Court of Appeals in its judgment on June 20, 1952 (71 S. E. 2d, 773, S. E. Advance Sheet of September 4, 1952); and such judgment of the Court of Appeals has been made the judgment of this Court, the effect being to overrule all of said demurrers. The case is now ripe for a declaration of the rights, if any, of the plaintiff in this matter. No evidence was submitted to the Court at the hearing, and this judgment is rendered on the pleadings in the case. Under the view I take of this case, under the pleadings, the plaintiff is not entitled to the relief sought. The term 'public or livery conveyance' as used in the exclusion provision of the insurance policy in question does not include a vehicle such as the one involved, but rented for once for fifty cents to the person driving it at the time of the collision in which the persons seeking damages in the other suits were injured, and on other occasions to various parties. To come within the terms of the exclusion and thus be exempted from coverage, such vehicle described in the policy must be used indiscriminately, or at least generally, in conveying the public, or must be held out to the general public as a vehicle for carrying persons for hire, and so used on one or more occasions. Such exclusion clauses do cover a single prohibited act as where a vehicle is by advertisement or other means held out as a public or livery conveyance, and is used one or more times for that purpose. Clauses such as the one here would cover such a use, but are inapplicable to use once or on occasions for hire unless the vehicle has been held out to the public by advertisement or by a course of conduct as a public or livery vehicle. The plaintiff alleged in Paragraph 3 that 'on May 29, 1951, the said Clyde Barrett rented the said Ford pick-up truck to defendant, Flanders Mitchell.' Exhibit B attached to the petition shows that on May 29, 1951, the said Mitchell 'secured the use of the truck by paying Clyde Barrett fifty cents for gas put in truck.' Paragraph 13 of plaintiff's petition alleges that 'the renting of said truck to the said Mitchell on said date was not an isolated occurrence or incident, but that the said Clyde Barrett had frequently rented said truck to various parties for a monetary consideration, all of which was unknown to your petitioner.' There is no allegation that the vehicle was rented indiscriminately, nor rented or offered for rent to the public, nor held out or advertised as a rentable vehicle. Though not necessary to the ruling, judgment and declaration herein made, it is significant to note that the insurance policy involved stated that the purposes for which the vehicle is to be used are 'commercial' and for service calls of the insured, trading as a service station; and
'commercial' is defined as 'use principally in the business occupation of the named insured as stated in Declaration 1, including occasional use for personal pleasure, family and other business purposes.' I am of the opinion that the alleged facts in the petition are not sufficient to bring the case within the term of the exclusion provision and to establish non-liability under the policy with respect to the damage suits sought to be enjoined. [citations]. The plaintiff's case of Myers v. Ocean Accident & Guaranty Co., 99 F. (2d) 485, and similar cases are distinguishable from these authorities on the basis of the difference in the exclusion clause. Wherefore, it is considered, ordered, adjudged and declared that: (1) The plaintiff, Georgia Casualty & Surety Company, is not relieved of any of its obligations under the terms of the policy involved because of the exclusion clause therein set forth, and set forth in Paragraph 12 of the original petition. (2) The relief sought by plaintiff be, and is hereby denied. (3) The previous injunction and restraining order entered in this case is hereby annulled and vacated." No evidence was introduced and judgment was rendered on the pleadings. The plaintiff excepts to the judgment.
The case was decided on the facts appearing in the pleadings by which, under the circumstances, the parties are bound. The petition alleged that the truck was rented and unless the court determined whether that was true or not, its decision would have been of no value to the parties because the plaintiff would still, under some circumstances, not have known whether to defend the case or not. In a reservation-of-rights agreement, signed by Clyde Barrett, Flanders Mitchell, and the plaintiff, it was agreed that "at the time of the accident, Flanders had secured the use of the truck by paying Clyde Barrett 50 for gas put in [the] truck," which agreement was attached as an exhibit to the petition. The court found as a fact from this exhibit that Mitchell rented the truck for fifty cents. Whether we agree with the reasons given by the court for its judgment, we think that the judgment was right. The court erred in finding as a fact that the truck was rented for fifty cents. The only reasonable and common-sense meaning, as we see it, of the statement that Mitchell had secured the use of the truck by paying Clyde Barrett fifty cents for gas put in the truck, is that the truck was loaned to Mitchell on condition that he would put fifty cents worth of gasoline in the truck, and this was not a consideration flowing to Barrett to compensate for the use of the truck, which means that the truck was gratuitously loaned to Mitchell upon his putting into the truck the amount of gasoline estimated to be sufficient to run the truck during the time it was so loaned. In this view, the truck was neither hired out by Barrett as a common or public carrier nor as a livery conveyance, whether the terms mean the same thing, or whether livery conveyance means the hiring of a vehicle to selected persons and not to the public generally. The exclusion clause relied on by the insurer is as follows: "Exclusions--This policy does not apply: (a) while the automobile is used as a public or livery conveyance, unless such use is specifically declared and described in this policy and premium charged thereof." This exclusion and the other exclusions in the policy do not exclude from coverage the vehicle while it is loaned. It follows that the court was correct in ruling that the exception clause in the policy did not apply, and that the plaintiff would be required to defend the case.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.