dissenting.
It is my view that the trial court should be affirmed. I, therefore, respectfully dissent.
On the morning of October 21,1978, Thomas Lee Burnett was riding around in his automobile, upset with his girl friend, Karol Eldoria Tripp. He stopped and gave a pistol he kept in the automobile to a friend as a precautionary measure. Burnett then resumed riding around and, sometime later, he found Ms. Tripp in the automobile of another man. Burnett stopped the other vehicle, assaulted the driver and had Ms. Tripp get into his own vehicle (apparently, she got in Burnett’s automobile voluntarily). Burnett resumed driving again, engaging Ms. Tripp in a mostly one-way unfriendly conversation. He stopped and retrieved his pistol (then in a paper bag) from his friend and put it on the automobile seat.
Burnett turned down a bumpy street and, for an unexplained reason, he removed the pistol from the paper bag and held it in his hand, off the seat and pointed toward Ms. Tripp. Ms. Tripp turned to look at him, apparently not knowing the pistol was pointed in her direction, and the pistol discharged, causing a bullet to strike her between the eyes. Miraculously, Ms. Tripp survived. Neither Burnett nor Ms. Tripp could say what caused the pistol to discharge and Burnett denied pointing the pistol at Ms. Tripp intentionally and asserted that the shooting was unintentional.
Karol Eldoria Tripp filed a lawsuit against Thomas Lee Burnett seeking $252,500 in damages for injuries suffered as a result of being shot between the eyes with the pistol then being held by Burnett while she was a passenger in his automobile. Burnett held an automobile liability insurance policy issued by plaintiff Georgia Farm Bureau Mutual Insurance Company (Georgia Farm Bureau) and he looked to this insurer for defense in the litigation.
Georgia Farm Bureau then initiated an action seeking a declaratory judgment as to whether it was liable under the policy.
The case proceeded to trial based upon virtually the above uncontroverted facts. At the close of the evidence two issues were presented by way of special interrogatory for jury determination. The issues were (1) whether the injury to Ms. Tripp arose out of the ownership, maintenance or use of Burnett’s automobile and (2) *486whether the injury was intentionally inflicted. Plaintiff and defendants also each moved for a directed verdict. The trial court denied plaintiffs motion and granted defendants’ motion as to the first special interrogatory. The jury was presented the second issue and decided that the injury was unintentional.
1. Plaintiff first challenges the trial court’s conclusion, as a matter of law, that the injury arose out of the ownership, maintenance or use of Burnett’s automobile. Plaintiff contends that there is no evidence of a causal connection between the injury and the ownership, maintenance or use of the automobile. Therefore, the plaintiff contends the trial court erred by directing the verdict for defendants and by not directing the verdict for it. Alternatively, plaintiff contends that it was error to direct the verdict because the jury should have been presented the issue of causal connection.
Under the terms of the insurance policy issued by plaintiff to Burnett, plaintiff is liable “[t]o pay on the behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of: A. Bodily injury... sustained by any person:... arising out of the ownership, maintenance or use of the owned automobile. . . .” This is a typical provision and a number of substantially identical provisions have been construed by this court with respect to various circumstances.
The first case in which this court dealt with the issue appears to be Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga. App. 562 (1) (236 SE2d 550). In that case, the court held in Headnote 1: “Where the driver of the vehicle in which the deceased was sitting holding a pistol turned from a smooth paved road onto a bumpy, rutted, unpaved road and immediately thereafter the pistol discharged, killing the insured, it cannot be said as a matter of law that the accident did not arise out of the operation, maintenance or use of a motor vehicle as a
vehicle____” The court further held that a finding that the injury was directly and proximately caused by the use of the vehicle was not required in “that where a connection appears between the ‘use’ of the vehicle and the discharge of the firearm and resulting injury such as to render it more likely that the one grew out of the other, it comes within the coverage defined.” Id. at page 564 (1). See also Franklin v. Southern Guaranty Ins. Co., 160 Ga. App. 279, 282 (287 SE2d 274).
Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga. App. 562, 563, 565, supra, however, did not involve a directed verdict. The trial judge, sitting as trier of fact, found in favor of the insured, and that judgment was affirmed by this court. This court did not hold that the issue of causation was a question for the trier of fact though. On the contrary, in most such cases reaching this court (albeit a slim majority), the issue was decided as a matter of law. See Washington v. *487Hartford Accident &c. Co., 161 Ga. App. 431 (1) (288 SE2d 343) (affirming a judgment on the pleadings in favor of the insurer); Payne v. Southern Guaranty Ins. Co., 159 Ga. App. 67 (282 SE2d 711) (reversing the denial of the insured’s motion for judgment on the pleadings); and Leverette v. Aetna Cas. &c. Co., 157 Ga. App. 175 (276 SE2d 859) (affirming summary judgment for the insurer); but see Ins. Co. of North America v. Dorris, 161 Ga. App. 46 (1) (2) (288 SE2d 856) (affirming the denial of the insurer’s motion for summary judgment); and Franklin v. Southern Guaranty Ins. Co., 160 Ga. App. 279, supra (reversing a grant of summary judgment to the insurer).
“If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” OCGA § 9-11-50 (a) (formerly Code Ann. § 81A-150 (a) (Ga. L. 1966, pp. 609, 656; 1967, pp. 226, 237, 246, 248)). Under this standard and the case law cited above, it is quite clear that plaintiff was not entitled to a directed verdict in the case sub judice. I find on the other hand that defendants were entitled to a directed verdict on this issue. The only evidence presented at trial which could have supported a finding that the discharge of the weapon and the resulting injury did not arise out of the use of the vehicle was that evidence creating an inference that Burnett shot Tripp intentionally (see Washington v. Hartford Accident &c. Co., 161 Ga. App. 431, supra), but that evidence was isolated to the second special interrogatory. Therefore, I would hold that the trial court did not err in directing the verdict in defendants’ favor on this issue.
2. Plaintiffs remaining three enumerations of error relate to the jury charge. Plaintiff first contends that the trial court erred in charging the jury that the insurance policy should be construed most favorably toward the insured. Plaintiff argues that contract construction is not a jury function and, furthermore, that there was no ambiguity in the policy to warrant construction.
The complained of language is: “In Georgia, contracts of insurance are to be construed — that is, interpreted — most strongly against the insurer — that is, the insurance company — and in favor of the insured person or persons.” The trial court followed this by stating: “If a policy of insurance is fairly susceptible of more than one construction, the interpretation most favorable to the insured shall be given effect.”
Clearly our law is that 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. See American Cas. Co. v. Crain-Daly Volkswagen, 129 Ga. App. 576, 579 (200 SE2d 281). In Calif. Ins. Co. v. Blumburg, 101 Ga. App. 587 *488(2), 592 (115 SE2d 266), this court held it was reversible error for the trial court to give the jury any instructions with regard to the manner in which the contract should be construed, citing certain cases. Hence, as there was nothing in that case for the jury to consider about the contract it was “probably harmful error” for the court to inject into the case “issues not proper for the jury to consider.” This rule has been followed in such recent cases as Transamerica Ins. Co. v. Thrift-Mart, 159 Ga. App. 874, 879, 881 (3) (285 SE2d 566); and Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 335-336 (291 SE2d 410). However, in the case sub judice the trial court clearly explained to the jury that this was a declaratory action in which the parties sought a judgment declaring their respective rights under an insurance policy; the case was not one for damages or who should recover or who should not recover any personal injuries or damages. The court advised the jury not to give any undue influence to any part of the charge but accept the court’s charge as a whole and that the jury was to determine whether or not the injury to Ms. Tripp was intentionally inflicted upon her by Thomas Lee Burnett, the insured. The case was given to the jury with reference to special verdicts. First, as to whether Ms. Tripp’s injury arose out of the ownership, maintenance or use of the automobile covered by the insurance policy, but in this respect a verdict in the case had been directed for the defendants (Tripp and Burnett), that is, that Ms. Tripp’s injuries arose out of the ownership, maintenance, and use of the automobile covered by the insurance policy and the court clearly advised the jury to answer this question in the affirmative as directed by the court. The court then instructed the jury that by directing the verdict as to this point the court was not expressing an opinion as to what the jury’s verdict should be as to the remaining issue (which was whether or not the injury to Ms. Tripp was intentionally inflicted upon her by Thomas Lee Burnett, the insured). The court then amply instructed the jury with reference to how it should proceed with a determination on this point as to consideration of the evidence. The court explained to the jury that the parties had stipulated and agreed that the plaintiff had issued a policy of insurance to the defendant insured (Burnett) and that the policy is in existence. The court then proceeded to charge the jury as to the meaning of certain terms, that an insurance policy is a contract or agreement between two or more parties, and under the no fault insurance law and other Georgia law as to contracts of insurance the term “insured” would include a person occupying the vehicle. The jury was charged that contracts of insurance are to be construed, that is, interpreted most strongly against the insurer, the insurance company, and in favor of the insured person or persons and that if the policy of insurance is fairly *489susceptible of more than one construction “the interpretation most favorable to the insured shall be given effect.” The court then charged that the plaintiff had the burden of proving any exclusions in its policy of insurance and any such exclusions are applicable to the facts of the case.
A reading of the entire charge, as a whole, fails to disclose that the trial court in any wise charged the jury that the jury was involved in the construction of the contract (the policy of insurance). The court gave a definition of a contract as “an agreement between two or more parties for the doing of some specified thing.” The trial court directed an affirmative answer to the question as to whether this defendant’s (Tripp’s) injury arose out of the ownership, maintenance, or use of the automobile covered by the insurance policy and instructed the jury that the only question for the jury to decide was whether or not her injury was intentionally infíicted by the insured so as to exclude her from coverage under the insurance policy.
I, therefore, would hold that the challenged portion of the charge, when taken together with the charge as a whole, gives us no cause to disturb the judgment. See City Dodge v. Gardner, 130 Ga. App. 502, 504 (2) (203 SE2d 729) affd., 232 Ga. 766 (208 SE2d 794); State Hwy. Dept. v. Davis, 129 Ga. App. 142 (1), (2) (199 SE2d 275). I cannot see how this instruction had any effect on the verdict, and, if error, was harmless.
3. I agree with the majority that there was no error in the other two enumerations of error to the charge as found in Divisions 3 and 4 of the majority opinion.
As there was no reversible error in the case sub judice, I simply cannot accept the majority view in reversing the decision of the jury and the trial court and requiring a new trial. Following the jury verdict, I find no error in the judgment finding liability insurance coverage and that the defendant Tripp is afforded insurance coverage.