
    46497.
    E. RAYMOND SMITH, INC. et al. v. ALLSTATE INSURANCE COMPANY et al.
   Hall, Presiding Judge.

In an action for declaratory judgment, one insurer appeals from the denial of its motion for summary judgment.

Argued September 17, 1971

Decided January 4, 1972.

Martin, Snow, Grant & Napier, Henley V. Napier, Edward J. Harrell, for appellants.

Jones, Cork, Miller & Benton, Wallace Miller, Jr., for appellees.

This suit arose out of an automobile collision in which everyone was killed. The representatives of Allstate’s insured have given notice of their intent to sue the estate of the driver of the other car, one Johnson. Allstate brought this action to determine whether Johnson was an uninsured motorist. Johnson was driving a car owned by a dealer who has a garage liability policy with Indiana Lumberman’s Mutual. The sole issue is whether Johnson was operating the automobile within the scope of permission granted him so as to be an insured under the terms of Indiana’s policy.

Since there are material issues of fact concerning the scope of his permission, the court did not err in denying the motion for summary judgment. See American Employer Ins. Co. v. Johns, 122 Ga. App. 577 (178 SE2d 207).

Judgment affirmed.

Eberhardt and Pannell, JJ., concur.  