RESERVE INSURANCE CO. v. DAVIS

Reserve Insurance Company brought a declaratory judgment action against its insured, joining as defendants the plaintiffs in damage suits against the insured. The action sought a declaration of non-liability to the insured under a non-owner policy and an endorsement which latter states in part as follows: "It is agreed that such insurance as is afforded by the policy for Bodily Injury Liability, for Property Damage Liability and for Automobile Medical Payments applies with respect to the use of any automobile by or on behalf of the named insured or his spouse if a resident of the same household, subject to the following provisions: . . . 2. The insurance does not apply: (b) to any automobile while used in a business or occupation of such named insured or spouse, unless operated or occupied by such named insured, spouse, private chauffeur or domestic servant; . . ."

The exclusion relied on by the insurer was that applying "(a) . . . while the automobile is used as a public or livery conveyance, unless such use is specifically declared and described in this policy." The petition alleged that at the times of both the issuance of the policy and the occurrence of the accident the defendant insured was employed by a motor common carrier, his duties including the operation of a livery conveyance, and that such use was not specifically declared and described in the policy as provided in exclusion (a), above. The petition also prayed that the other two defendants be temporarily enjoined from prosecuting their suits against the defendant insured in Fulton Superior Court.

The defendants filed answers and counterclaims, alleging that the insured had applied to the plaintiff insurer for insurance for the purpose of compliance with the Georgia Safety Responsibility law in order to reinstate a lost driver's license and that the insurer had issued the policy for this purpose and with the knowledge that the insured was a truck driver by occupation. The above facts were stipulated by all the parties. The counterclaims prayed for damages as a penalty for the bringing of an action in bad faith. The plaintiff filed timely motions to strike each counterclaim.

The court, acting without the intervention of a jury, rendered a declaratory judgment against the plaintiff insurer, holding it to be liable under the policy, and denied all claims for bad faith penalties. To the rulings adverse to it the plaintiff excepted. The defendants filed cross bills of exception to the adverse rulings on their counterclaims.

FELTON, Chief Judge.

1. A motion to dismiss the writ of error was made, on the following grounds: (1) that there was no sufficient assignment of error; (2) that the plaintiff in error has no right of appeal from the decision of the judge acting as court and jury in the construction of a contract; and (3) that the plaintiff in error has not specified the errors sufficiently for review of the judgment by this court, either by filing a motion for a new trial or by a sufficient assignment of errors in its bill of exceptions.

The assignment of error was as follows: "To this portion of the order, the plaintiff then and there excepted, now excepts and assigns the same as error upon the grounds that it was contrary to law because the plaintiff was not liable under the insurance policy for the reasons stated in the petition; and upon the grounds that the plaintiff was entitled to the injunctive relief prayed for; and according to the plaintiff's contentions, the case thus illegally terminated." Immediately preceding this assignment of error was quoted that portion of the order ruling on the merits of the case.

"The sufficiency of an assignment of error in a bill of exceptions is determinable not only by the language contained in the assignment itself, but, in addition thereto, by the nature and character of the judgment complained of. . ." Hart v. Lee, 29 Ga. App. 253 (1) ( 114 S.E. 644). The judgment in the case sub judice is a declaratory judgment which adjudicated the rights of the parties under the provisions of a written insurance contract, a question of law. All issues of fact were stipulated, hence undisputed. While the general rule with regard to bills of exception, as set out in Code Ann. §§ 6-801 and 6-901, is that they shall plainly and specifically set forth the errors alleged to have been committed, "[t]his rule . . . is one of substantial practice, rather than a Procrustean rule of words." Patterson v. Beck, 133 Ga. 701, 705 ( 66 S.E. 911). The rule to be used in determining whether a general assignment of error is sufficient is that "[w]here there are several things involved in a judgment, the thing complained of ought to be made to appear." Patterson v. Beck, p. 705, supra. The only thing involved in the judgment under consideration was the matter of the plaintiff's liability under the insurance policy under the undisputed facts. The assignment of error is made even more specific by quoting the specific portion of the order which is alleged to be error and, further, by stating that the order was contrary to law because the plaintiff was not liable under the insurance policy for the reasons stated in the petition. These reasons consisted of the existence of a clause excluding coverage on any automobile used as a livery conveyance unless such use is specifically declared in the policy and the absence of such specific declaration in the policy. This assignment was sufficient to identify the error complained of as the court's construction of the insurance contract. General assignments of error have been held sufficient where there was only one issue involved in the following cases: Cambridge Tile Co. v. Scaife Sons Co., 137 Ga. 281 (1) ( 73 S.E. 492); Tilley v. King, 190 Ga. 421 (1) ( 9 S.E.2d 670); Ocilla Southern R. Co. v. Morton, 17 Ga. App. 703 (1) ( 87 S.E. 1088), citing Patterson v. Beck, p. 707, supra; Robinson v. Bryson Sons, 45 Ga. App. 440 (4) ( 165 S.E. 158).

There is no merit in the contention that no appeal will lie from the decision of the judge acting as court and jury in the construction of the contract. The provisions of Code Ann. § 6-901 give the right of appeal from any final judgment to an aggrieved party. There is likewise no merit in the ground urged that no motion for new trial was filed. "Where the issues of a case are submitted to the judge without the intervention of a jury, for his decision upon all matters of fact and of law, and he renders a judgment therein in term time, the losing party may review the judgment either by a direct bill of exceptions or by a motion for a new trial." Yancey Bros. Co. v. Bowling, 92 Ga. App. 291 (1a) ( 88 S.E.2d 566) and citations.

For the foregoing reasons, the motion to dismiss is denied.

2. Having decided in Division 1 above that the sole issue before the court below was one of law, i. e., the construction of the written insurance contract, we must now decide whether or not the judgment on the facts was contrary to the evidence.

The declarations in the policy showed that the insured's occupation was truck driver and that the use of the vehicles insured was declared to be "Pleasure and Business" (defined by the policy as "personal, pleasure, family and business use") rather than "Commercial" (defined as "use principally in the business occupation of the named insured as stated in Item 2 [Truck driver], including occasional use for personal, pleasure, family and other business purposes.") The non-owner endorsement, quoted in part in the statement of facts above, affords to the insured " such insurance as is afforded by the policy . . ." with respect to the use of any automobile, subject to four provisions, none of which is applicable. The learned trial judge held that the fact that the declared use included the term "business," plus the fact that the insured's occupation was declared to be "truck driver," plus the statement that the insurance applied to the use of " any automobile" was sufficient to cover use by the insured as a truck driver. In our opinion this construction is not in accordance with the express provisions of the written contract for two reasons. Firstly, it ignores the distinction made in the declarations between primarily personal use, which was checked, and commercial use, which was not checked. The plaintiff's knowledge that the insured's occupation was truck driver was not of itself notice that the insured intended to obtain the insurance for use of his employer's trucks, which were used as public or livery conveyances especially since the personal, rather than the commercial use space was checked. Secondly, it ignores the fact that, although the use of "any automobile" is covered, the coverage is limited to "such insurance as is afforded by the policy." The policy clearly excludes coverage on automobiles while used as public or livery conveyances, unless such use is specifically declared and described in the policy. Nowhere in the policy is there any specific declaration and description of such use. To construe the contract as covering this use would be to re-write its express terms and give the insured additional coverage for which he has neither contracted nor paid. It was stipulated that the insured requested the insurance for the purpose of compliance with the Georgia Safety Responsibility Law, the purpose of which law being the protection of the public against losses caused by uninsured vehicles. The insured's employer, being a common carrier operating under a Certificate of Public Necessity, is required by law to file evidence of its financial responsibility with the Georgia Public Service Commission. The policy in question therefore is sufficient to comply with the Safety Responsibility Law since losses occurring while the insured is driving his employer's public or livery trucks are covered by the employer's insurance (and excluded under the present policy) and losses occurring while the insured is driving non-owned automobiles other than while used as public or livery conveyances are covered under the policy. From the above it follows that the court erred in rendering a declaratory judgment against the plaintiff.

3. The court did not err in denying the bad faith penalties sought by the defendants' counterclaims inasmuch as the judgment against the plaintiff insurer is herein reversed.

Judgment reversed on the main bill; affirmed on the cross bill. Frankum and Pannell, JJ., concur.