concurring in part and dissenting in part.
I respectfully dissent from Division 1 and from the judgment of reversal as it is my view that the plaintiff in this declaratory judgment action, Allstate Insurance Company, (“Allstate”), was not harmed by the erroneous giving of an inapplicable jury instruction on construction of the insurance contract. This erroneous charge did not effectively direct the verdict against Allstate. Consequently, the special interrogatories insulated Allstate against the likely harm occasioned by the trial court’s inapplicable instruction. It follows that such harmless error does not require a new trial. I fully concur in Divisions 2, 3, 4, and 5.
Allstate alleged that no coverage was afforded to its insured, Jimmy Dowda, for the injuries Shane Brannon received when Dowda’s gun discharged. Allstate relied on the provisions of three separate exclusions. First, Allstate contended that Brannon was an insured under Dowda’s policy as a relative of the named insured residing in the same household, making applicable an exclusion which denies coverage for bodily injury to “an insured person whenever any *305benefit of this coverage would accrue directly or indirectly to an insured person.” Secondly, Allstate claimed that Brannon was injured as a result of Dowda’s intentional act. Lastly, it was contended that coverage was excluded because the shooting was a criminal act. The case was tried before a jury. Special interrogatories were submitted to resolve specific factual matters regarding the applicability of these exclusions. The jury found the policy exclusions inapplicable to the facts of the case and judgment was entered on the special verdicts. Allstate’s motion for new trial was overruled and this direct appeal followed.
In its first enumeration, Allstate contends the trial court erred in giving the following jury instruction: “[A]n insurance policy is a contract. I charge you that an exclusionary provision in an insurance contract is to be construed strictly against the insurer, but it is equally true that the construction must be a reasonable construction.” Relying on Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 334 (2), 335 (291 SE2d 410), Allstate argues that this charge on certain legal principles applicable to the construction of an ambiguous term in an insurance contract was harmful error, because no such jury question was presented.
“ ‘(I)t is not the province of the jury to construe unambiguous contracts. In fact it is error to submit such question to the jury. (Cit.) The duty to construe contracts is upon the court. (Cits.)’ American Cas. Co. v. Crain-Daly Volkswagen, 129 Ga. App. 576, 579 [(200 SE2d 281)].” Transamerica Ins. Co. v. Thrift-Mart, 159 Ga. App. 874, 879 (3), 881 (285 SE2d 566). “ ‘Contracts, even when ambiguous, are to be construed by the court and no jury question is presented unless after application of applicable rules of construction an ambiguity remains. (Cits.) Insurance policies being contracts, the decisions have held that the matter of construction is for the court. (Cits.)’ American Cas. Co. v. Crain-Daly, 129 Ga. App. 576, 579[, supra].” Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 335 (3), 336, supra. I agree with Allstate and the majority that, in the case sub judice, no issue was timely raised below as to any possible ambiguity in any of the exclusions sought to be applied. But see Southeastern Fidelity Ins. Co. v. Fluellen, 128 Ga. App. 877, 879 (198 SE2d 407) (physical precedent). However, an erroneous or unwarranted submission of the contract to the jury for contract construction was not necessarily harmful error, Tilton v. Butts, DePue & Co., 78 Ga. 30, hn. 1, and it is at this juncture that my analysis differs from that of the majority.
“While it is the duty of the court to construe a written contract, still a new trial will not be granted for failure to discharge this duty where the contract is submitted to the jury and properly construed by them. Especially is this true in a case where, if the contract had been properly construed by the court, the construction would have been *306adverse to the plaintiff in error and the result would have been the same as reached by the jury in their verdict. Main v. Simmons, 2 Ga. App. 821 (59 SE 85); [cit.].” South Ga. Trust Co. v. Neal, 174 Ga. 24, hn. 2 (161 SE 815). The special verdict form employed in the case sub judice shows that the jury was instructed to make three determinations which were strictly factual: (1) Was Brannon a resident of Dowda’s household at the time of the shooting?; (2) Was the shooting a criminal act, and if so, was it justified?; and (3) Was the shooting intended or expected from the perspective of the insured, Dowda? I fully agree that the trial court erred in giving the inapplicable two-sentence charge on the construction of exclusionary provisions contained in a contract of insurance, regardless of whether that “construction must be a reasonable construction.” However, it is my view that, the jury in fact did not construe the contract but were narrowly directed to purely factual matters by virtue of the special verdict. Accordingly, the unwarranted instruction in the case sub judice cannot be said to have effectively directed a verdict against the insurer, as was the case in Transamerica Ins. Co. v. Thrift-Mart, 159 Ga. App. 874, 879 (3), supra. It follows that the error in giving this unwarranted instruction was immaterial to the issues actually decided by the jury and the trial court did not err in overruling the insurer’s motion for new trial on this ground. South Ga. Trust Co. v. Neal, 174 Ga. 24, 25, hn. 5, supra. I would distinguish the whole court case of Ga. Farm Bureau Mut. Ins. Co. v. Burnett, 167 Ga. App. 480, 482 (2), 483 (306 SE2d 734), relied upon by the majority. In Ga. Farm Bureau, the trial court gave an inapplicable jury charge on the construction of ambiguities with regard to an unambiguous exclusionary clause in an automobile insurance policy. This inapplicable instruction could not be deemed harmless error despite the use of special interrogatories where this court had already determined that the trial court erroneously directed a verdict in favor of the insured as to one of two factual issues determining coverage vel non for gunshot injuries sustained when insured intentionally pointed a loaded gun at another. As it is my view that this authority is not controlling under the facts of the case sub judice, I would apply the harmless error analysis employed by the Georgia Supreme Court in South Ga. Trust Co. v. Neal, 174 Ga. 24, hn. 2, supra, and hold that a new trial is not mandated by the harmless error presented in this case. Consequently, I respectfully dissent from Division 1 of the majority opinion and from the judgment of reversal.
I am authorized to state that Presiding Judge Beasley and Senior Appellate Judge Harold R. Banke join in this opinion.
*307Decided July 15, 1994 Reconsideration denied July 29, 1994. Downey & Cleveland, Russell B. Davis, W. Curtis Anderson, for appellant. Parker & Lundy, William L. Lundy, Jr., Mundy & Gammage, Miles L. Gammage, Daniel B. Simon III, for appellees.