Summary
In Life and Casualty Insurance Company v. Greenlee, 187 Miss. 143, 192 So. 340, the court held that a policy, providing indemnity for death if the insured should be struck, knocked down, or run over by a motor vehicle while walking or standing on a public highway, covered the insured who, while standing on the highway with one foot on it and the other raised in an effort to mount a slowly moving truck was struck by a part of the truck, knocked down, run over and fatally injured.
Summary of this case from Davis v. Ins. Co. of AmericaOpinion
No. 33897.
November 27, 1939.
1. INSURANCE.
An insurance contract will be construed most strongly against the insurer and in favor of insured.
2. INSURANCE.
Policy which provided indemnity in event of death of insured caused by being struck by motor vehicle while insured was walking or standing on public highway, covered death of insured who was struck by truck while insured was attempting to mount truck which was in motion and was being slowed down to enable insured to do so, where policy contained no limitation exempting insurer from liability in such event, since if at time insured was struck, he had one foot on ground and one foot raised for purpose of mounting truck, he was to that extent "standing" within meaning of policy.
APPEAL from the circuit court of Lowndes county; HON. JOHN C. STENNIS, Judge.
John F. Frierson, of Columbus, for appellant.
There is no doubt as to the purpose, the intent, the effort, and the act of the insured at the time of the accident. He was making an attempt to mount a moving truck, failed in the attempt and lost his life. He had expressed his purpose and intent to mount the truck. The injury was not caused from standing or walking on a public highway, but from attempting to mount a moving vehicle on a public highway. He had quit standing or walking on the public highway and was mounting a moving truck.
The insurance policy is a cheap policy of limited liability, and there is no ambiguity in its terms and the plain terms of the policy must be followed.
Huston v. Trs. Ins. Co., 66 Ohio State 246, 64 N.E. 123; Hart v. North American Accident Insurance Company, 154 Miss. 400, 122 So. 471; Richards v. Standard Accident Insurance Company, 58 Utah 622, 200 P. 1017, 17 A.L.R. 1183; Lewis, Exrx., v. Ocean Accident Guaranty Corporation, 224 N.Y. 18, 120 N.E. 56, 7 A.L.R. 129, 1130.
Certainly in the common speech of men, the expression, "struck . . . while the insured is walking or standing on a public highway . . ." could not be understood as applying to one who was "hurled to the ground while attempting to mount the moving truck."
Gant v. Provident Life Accident Ins. Co., 497 N.C. 122, 147 S.E. 740; Gilbert v. Federal Life Ins. Co., 257 Mich. 205, 241 N.W. 150, 151; North American Acc. Ins. Co. v. White, 250 Ky. 513, 80 S.W.2d 577; Laporte v. North American Acc. Ins. Co., 161 La. 933, 109 So. 767, 48 A.L.R. 1086; Sizemore v. National Casualty Co., 151 S.E. 841; Huston v. Travelers Ins. Co., 66 Ohio St. 246, 64 N.E. 123; 7 Words Phrases, 1st series, 6623.
If the insured had been struck by a moving vehicle while standing or walking on a public highway, no matter how negligent, he would have been covered by the policy. But if the insured was injured by endeavoring to mount a moving vehicle, no matter how careful, his injury would not have been covered by the policy.
The attempt to mount the moving vehicle had everything to do with the accident. It was the sine qua non, and an injury so happening to the insured was not covered by the policy.
We respectfully submit that the peremptory instruction should not have been allowed the plaintiff, and that the peremptory instruction asked by the defendant should have been allowed, that the case should be reversed and that the Supreme Court should give judgment for the defendant.
D.A. Burgin, of Columbus, for appellee.
The case of Smith v. L. C. Ins. Co. of Tenn., 196 S.E. 59 was decided against the insurance company; the defendant, appellee there, was the same as the appellant in the case at bar; the facts being very similar, as to the injury to the insured while he was "walking or standing on a public road;" the policy contract appears to be the same contract as the one now before this court; it appears that the insured was walking in the road and that he attempted to grab at a truck, missed it and was struck by the body of the truck, knocked down and the wheels of the truck ran over his body. The court held that the evidence was sufficient to show that the insured was at the time of injury "walking or standing on a public highway."
The words "standing or walking" are descriptive of a condition or state of being, the meaning of which term is unambiguous, self-explanatory, and requires no more particular definition. We have been unable to find a case where the term has been judicially defined. It has a meaning well understood by the average person, and should be given that meaning in its common and accepted and ordinary and well-known usage.
Contracts of insurance should be construed strictly as against the insurer and liberally in favor of the insured.
32 C.J. 1151, Sec. 262; Eminent Household C.W. v. Bunch, 115 Miss. 512, 76 So. 540; 32 C.J. 1152, Sec. 265.
An insurance contract, if perfectly plain and unambiguous, should be construed as written.
Continental Casualty Co. v. Hall, 118 Miss. 871, 80 So. 335.
Where the terms of an insurance policy will bear two interpretations that one will be adopted which sustains the claim for indemnity.
Shivers v. Farmers Mutual Fire Ins. Co., 99 Miss. 744; N Y Life Ins. Co., v. Blaylock, 144 Miss. 541.
Provision in policy should not be construed in favor of the insurer unless clearly required by the policy.
Ferguson v. Provident Life Accident Ins. Co., 170 Miss. 504; Murray v. Met. Life Ins. Co., 145 Miss. 266.
Insurance policy must be given practical rather than literal interpretation.
Locomotive Engineer's Mut. Life Accident Ins. Co. v. Meeks, 157 Miss. 97; Brotherhood of Railway Trainmen v. Bridges, 164 Miss. 356.
An insurance contract is construed most strongly in favor of the insured.
Home Ins. Co. of N.Y. v. Moore Rawls, 151 Miss. 189; Mutual Ben. Health Accident Ass'n v. Blaylock, 163 Miss. 567, 87 A.L.R. 679.
The appellant issued its policy of insurance in favor of Verdis Greenlee, wherein the appellee was named as beneficiary. The policy provided for the payment of the face amount thereof in the event of the death of the insured, if caused by being struck by a motor vehicle "while the insured is walking or standing on a public highway." While the policy was in full force and effect, the insured was struck and seriously injured by a motor-truck, while standing on the public highway, as he attempted to get on the truck while it was in motion and was being slowed down by the driver to enable him to do so. The insured had been riding on a wagon, which was overtaken on the highway by the truck in question. The other occupants of the wagon testified that he left it for the purpose of catching the truck, and that while he was standing on the highway with one foot on the ground, and the other raised for the purpose of mounting the truck, he was struck by the bolster thereof, knocked to the ground, and run over. He afterwards died as a result of the injury thereby sustained.
The appellant defended the suit on the ground that the insured was not injured while "walking or standing on a public highway," but at a time when he was attempting to mount a moving vehicle. The policy contains certain exclusions and limitations as to liability, but there is no limitation exempting the company from liability in the event the insured is struck by a motor vehicle while standing or walking on a public highway and trying to mount said vehicle. It is a cardinal principle of insurance law that a policy or contract of insurance is to be construed liberally in favor of the insured, and strictly as against the company; or in other words, the rule is as announced by our own Court in the case of Eminent Household of C.W. v. Bunch, 115 Miss. 512, 76 So. 540, 542, Ann. Cas. 1918C, 110, that: "It is elementary that contracts of this character [insurance policies] should be construed most strongly against the company and in favor of the insured." If the insured was standing on the highway with one foot on the ground and with the other raised for the purpose of mounting the truck, he was to that extent standing; and if there are to be exceptions invoked, they should be plainly expressed in the policy, or language equivalent thereto should be employed.
In the recent case of Smith v. Life Casualty Insurance Company of Tennessee, 185 Ga. 572, 196 S.E. 59, the Supreme Court of Georgia had under consideration a policy of insurance issued by this same appellant Insurance Company, and it likewise protected the insured against an injury sustained by being struck by a motor vehicle while "walking or standing on the public road." It appeared that the insured in that case, while walking in the road, was struck and killed by a truck as he undertook to grab hold of it for the purpose of riding thereon, as in the case at bar. The judgment rendered by the trial court in favor of the beneficiary in the policy was affirmed on appeal. In our opinion the case was correctly decided, and it is applicable here. The purpose for which the insured was standing in the road at the time he was struck is immaterial.
The evidence offered by the appellee in proof of the accident was uncontradicted, and it sustains the verdict of the jury. The judgment must therefore be affirmed.
Affirmed.