United States Fidelity & Guaranty Co. v. Guenther

• Decision Date: 03 April 1929
• Docket Number: No. 5107.,5107.
• Citation: United States Fidelity & Guaranty Co. v. Guenther, 31 F.2d 919 (6th Cir. 1929)
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. GUENTHER.
• Court: U.S. Court of Appeals — Sixth Circuit

31 F.2d 919 (1929)

UNITED STATES FIDELITY & GUARANTY CO. v. GUENTHER.

No. 5107.

Circuit Court of Appeal, Sixth Circuit.

April 3, 1929.

C. M. Horn, of Cleveland, Ohio (Dustin, McKeehan, Merrick, Arter & Stewart, of Cleveland, Ohio, on the brief), for plaintiff in error.

William M. Byrnes, of Cleveland, Ohio (Wm. A. Kane and Quigley & Byrnes, all of Cleveland, Ohio, on the brief), for defendant in error.

Before HICKS, HICKENLOOPER, and KNAPPEN, Circuit Judges.

HICKENLOOPER, Circuit Judge.

John F. Guenther, plaintiff below, recovered judgment against the United States Fidelity & Guaranty Company upon a policy of automobile insurance indemnifying him against loss and/or expense arising in consequence of any accident occurring within the limits of the United States and Canada by reason of the use of the automobile covered. Plaintiff was a resident of the city of Cleveland, Ohio. The accident occurred in the adjoining municipality of Lakewood while the automobile was being operated by an employee of the plaintiff who was more than 16 years of age, but less than 18. At the time of the accident an ordinance was in force in the city of Lakewood making it unlawful "for any owner, bailee, lessee or custodian of any motor vehicle to permit a minor under the age of 18 years to operate or run said motor vehicle upon public highways, streets or alleys in said city of Lakewood." The policy specifically provided: "This policy is subject to the following conditions: (A) The policy shall not cover any liability of the insured while being operated by any person under the age limit fixed by law, or under the age of 16 years in any event." It is here claimed that, by reason of this provision of the policy and the existence of the ordinance, no recovery can be had upon the policy.

Passing the contention that the ordinance does not "fix an age limit" for the operation of an automobile per se, the sole remaining question for determination is one of construction, whether this phrase of the policy was intended to preclude liability where the age limit is fixed by municipal ordinance and no limit is fixed by state statute. Manifestly the provision is "to be construed according to the sense and meaning of the terms which the parties have used, and, if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary, and popular sense." Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452, 463, 14 S. Ct. 379, 381 (38 L. Ed. 231). But if the policy "is so drawn as to require interpretation, and to be fairly susceptible of two different constructions, the one will be adopted that is most favorable to the insured." Thompson v. Phœnix Ins. Co., 136 U. S. 287, 297, 10 S. Ct. 1019, 1023 (34 L. Ed. 408), citing First National Bank v. Ins. Co., 95 U. S. 673, 678, 24 L. Ed. 563. See, also, Liverpool, etc., Ins. Co. v. Kearney, 180 U. S. 132, 136, 21 S. Ct. 326, 45 L. Ed. 460; Schambs v. Fidelity & Casualty Co., 259 F. 55 (C. C. A. 6), 6 A. L. R. 1231, and O'Brien v. North River Ins. Co., 212 F. 102, 105 (C. C. A. 4), L. R. A. 1917C, 722. Resort cannot be had to this latter rule to nullify the plain and obvious provisions of an insurance policy. Cf. Interstate Business Men's Accident Ass'n v. Lewis, 257 F. 241, 244 (C. C. A. 8); Canton Ins. Office v. Independent Transp. Co., 217 F. 213 (C. C. A. 9), L. R. A. 1915C, 408. But the question remains whether the language used is in fact susceptible to a double meaning, or, otherwise expressed, whether it will fairly and reasonably support that construction upon which liability of the insurer may be sustained.

Judge Westenhaver, in his opinion in the court below, decided this question in the following language: "The expression `by law' is at least susceptible of two constructions. It may mean or be fully satisfied by limiting it to a law enacted by the Legislature of a state. Ordinarily, when one speaks of the `law,' this is what is meant. One thus speaking has in mind a rule of conduct of uniform and general application prescribed by the supreme law-making body of some sovereignty. Ordinarily, when one speaks of a law, one does not have in mind ordinances, by-laws, or regulations of a municipality. * * * The insurer, had it been intended to include municipal ordinances, could very easily have said so. In Cuyahoga county there are more than 50 municipalities having equal right to enact ordinances of the same nature as the one in question. It cannot be held that the contract contemplates that every insured should investigate and learn whether an ordinance fixing an age limit was in force in all these municipalities before entrusting his automobile to someone else." In this...