DECIDED FEBRUARY 5, 1964. REHEARING DENIED FEBRUARY 21, 1964.
Action on insurance policy. White Superior Court. Before Judge Kelley, Emeritus.
Wheeler, Robinson Thompson, B. Carl Buice, for plaintiff in error.
Telford, Wayne Greer, Jeff C. Wayne, Dent Bostick, contra.
1. While a contract of insurance must be construed in its entirety, ambiguous, doubtful or conflicting provisions are strictly construed against the insurer.
2. Where the allegations of a petition show coverage under the policy, the plaintiff need not negative an exclusion, as the burden of showing the event to be within an exclusion is on the insurer.
3. Where the body of a policy covers a particular hazard, an endorsement or rider, which by its terms is operative as "designated in the policy as subject to this endorsement," does not apply to the coverage provided in the policy unless so designated in the policy.
DECIDED FEBRUARY 5, 1964 — REHEARING DENIED FEBRUARY 21, 1964.
Plaintiff (defendant in error) attended a social event July 4, 1960 on the grounds and premises of a Woodmen of the World lodge. Among the events of the day was a horse race. It was probably assumed that the horses entered were as dependable as Rocinante, Bucephalus or Traveler, but one of them bolted, ran into the crowd and injured plaintiff. He sued the Woodmen lodge, obtained judgment, and now seeks to recover the amount of his judgment from the insurer which had issued to the lodge an "owner's, landlord's and tenant's" liability policy, copy of which is attached to the petition. The insurer demurred generally, contending that the terms of the policy disclosed that there was no coverage afforded for the event which formed the basis of plaintiff's judgment.
The steeds respectively of Don Quixote, Alexander the Great and Robert E. Lee.
The body of the policy provides that the insurer shall pay on behalf of the insured all such sums which it might become legally obligated to pay "caused by accident arising out of the hazards hereinafter defined." Following that is a "Definition of Hazards" including, inter alia, "Division 1. Premises-Operations: The ownership, maintenance or use of the premises, and all operations necessary or incidental thereto." And following this definition of hazards are certain exclusionary provisions providing, inter alia, "This policy does not apply: (a) under division 1 of the Definition of Hazards: (1) to the ownership, maintenance, operation, use, loading or unloading of . . . (ii) draft or saddle animals . . . if the accident occurs away from the premises. . ." (Emphasis supplied).
A rider was attached to the policy at the time of its issuance adding provisions and exclusions. By it a further schedule of hazards was added to include "Clubs — riding — private — without riding rings or other facilities for riding or instruction on the premises — no commercial riding instruction or hiring of horses (not riding academies) . . ." following which it was provided that "It is agreed that such insurance as is afforded by the policy applies with respect to the premises and operative within the scope of any classification stated in the Schedule hereof or designated in the policy as subject to this endorsement, subject to the following provisions: 1. The insurance does not apply: (a) to the ownership, maintenance, operation, or use of . . . saddle animals, including saddle animals rented to others through the named insured, whether on or away from the premises owned by, rented to or controlled by the named insured unless such . . . saddle animals are specifically described in the Schedule hereof and a premium is charged therefor."
No horses were listed or described in the Schedule and no premium was charged for any.
To an order overruling the general demurrer to the petition defendant excepts.
1. "Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any rider, endorsement, or application made a part of the policy." Code Ann. § 56-2419. This, however, is to be done consistently with the well-settled rules that if the contract is ambiguous, the construction doubtful, or the provisions conflicting, all are to be construed against the maker or drawer of the instrument, and that the provisions of an insurance policy are to be construed strictly against the insurer. Cf. Macon Auto Auction v. Georgia Cas. c. Co., 104 Ga. App. 245, 249 ( 121 S.E.2d 400).
2. When the insurer invokes an exclusionary provision as applying to the event, it has the burden of showing it. Darby v. Interstate Life c. Ins. Co., 107 Ga. App. 409 (1) ( 130 S.E.2d 360). If the event is such that it is generally included in the insuring provisions as well as in the exclusionary provisions, it is not necessary that the plaintiff negative in his petition that it was an excluded event.
3. Applying these rules to the situation at hand, we conclude that the general demurrer was properly overruled. The general insuring provision in the Definition of Hazards appearing in the body of the policy is broad enough to include the kind of accident from which plaintiff suffered injuries. Moldovan v. U.S. Fidelity c. Co., 15 Misc.2d 85 ( 184 N.Y.S.2d 201), affd. 8 A.D.2d 607 ( 185 NYS2d 735). If there were any doubt as to that it would seem that the exclusionary provisions immediately following would make it certain, for there can hardly be any doubt that excluding liability for an accident arising out of the use of draft or saddle animals only when it occurs away from the premises would demonstrate that the accident was covered if it occurred on the premises.
No mention is made of the rider or endorsement in the body of the policy. No provision appears making it "designated in the policy as subject to this endorsement." Consequently, when the endorsement itself carries this limiting application the conclusion is inescapable that the provision in it providing for no coverage of accidents from the use of draft or saddle animals "whether on or away from the premises" applies only, as the endorsement itself provides, to "the scope of any classification stated in the Schedule" of the endorsement — which is the matter of riding clubs. Nothing appears to indicate that the Woodmen of the World was operating a riding club. Judgment affirmed. Bell, P. J., and Jordan, J., concur.