Long v. London & Lancashire Indemnity Co. of America

• Decision Date: 11 April 1941
• Docket Number: No. 8563.,8563.
• Citation: Long v. London & Lancashire Indemnity Co. of America, 119 F.2d 628 (6th Cir. 1941)
• Parties: LONG v. LONDON & LANCASHIRE INDEMNITY CO. OF AMERICA.
• Court: U.S. Court of Appeals — Sixth Circuit

119 F.2d 628 (1941)

LONG v. LONDON & LANCASHIRE INDEMNITY CO. OF AMERICA.

No. 8563.

Circuit Court of Appeals, Sixth Circuit.

April 11, 1941.

Charles S. Druggan, of Columbus, Ohio, for appellant.

Lee H. Kramer, of Columbus, Ohio (Hamilton, Kramer & Wiles, of Columbus, Ohio, on the brief), for appellee.

Before ALLEN, HAMILTON, and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

The appellee insurance company issued to appellant a public liability policy, under which the insurer agreed "to indemnify the assured against loss by reason of the liability imposed upon him by law for damages on account of bodily injuries, including death at any time resulting therefrom, suffered by any person or persons not employed by the assured as the result of an accident or accidents occurring during the policy period at a location named in the Declarations or upon the sidewalks, ways or premises immediately adjacent thereto."

Among the six locations declared covered by the policy, there was named as included for a stated premium of two dollars and fifty cents ($2.50) premises 2542 Tremont Road, described as occupied by the assured as a private residence.

In this jury action, brought by appellant against appellee for indemnification on account of the satisfaction by appellant of a judgment obtained against him by Wade Cary, a motorcycle officer, for personal injuries sustained on October 30, 1933, as hereinafter described, and for reimbursement of costs and attorneys' fees incurred by appellant in his unsuccessful defense of the damage suit, the District Court directed a verdict in favor of appellee insurance company on the ground that the accident in which Cary met his injury was not covered by the above-mentioned policy.

Decision on this appeal turns upon the answer to a simple single question: Was Wade Cary injured upon sidewalks, ways, or premises, "immediately adjacent" to premises No. 2542 Tremont Road?

The insured residential property of appellant is located at the southeast corner of two public ways, Lane Avenue and Tremont Road, in the suburban village of Upper Arlington, outside the city of Columbus, Ohio. Appellant's property line runs east along Lane Avenue an approximate distance of 228 feet from the intersection with Tremont Road, which runs north and south on the west side of appellant's property.

Around five o'clock in the afternoon, the patrolman idled his motor and parked his motorcycle, facing north, on Tremont Road some distance south of appellant's property. From this point, he started after a speeding automobile which was traveling east on Lane Avenue; and, as he reached the corner of Lane and Tremont, he saw a dog come out of the west drive of appellant's premises and cross over to the Blosser place on the northeast corner of the two highways, where the animal stood still. Then, on the park strip to the north of Lane Avenue, the dog ran alongside the motorcycle officer, who was proceeding east on Lane Avenue at increasing speed.

At the Blosser driveway, the barking dog ran out into Lane Avenue in front of the motorcycle and kept ahead in the chase until the intersection of York Road with Lane Avenue, approximately 288 feet from Tremont Road, was reached. There the dog was struck by the guards on the side of the fast moving motorcycle. The impact of the collision turned the machine sideways, and the officer was thrown violently to the pavement. The dog ran away yelping and jumped a stone fence to the south.

Patrolman Cary wavered in his testimony as to whether he first observed the dog coming forth from appellant's premises.

"Q. * * * the first positive fact you are sure of is that you saw the dog in Mr. Blosser's front yard, that is a fact? A. Yes; that is the truth.

"Q. Then the dog went down to the driveway, Blosser's driveway, and then came on to the road? A. That is right."

But, inasmuch as the testimony on this review must be considered in the light most favorable to the appellant, we shall assume that, as stated by the witness Cary on direct examination, the dog when first observed by him was coming out of a driveway of appellant's premises.

Stressing the doctrine that when an insurance policy is open to two constructions, that most favorable to the insured will be adopted (Stipcich v. Metropolitan Life Ins. Co., 277 U.S. 311, 48 S.Ct. 512, 72 L.Ed. 895; Mutual Life Ins. Co. v. Hurni Packing Co., 263 U.S. 167, 44 S.Ct. 90, 68 L.Ed. 235, 31 A.L.R. 102; Thompson v. Phenix Insurance Co., 136 U.S. 287, 10 S.Ct. 1019, 34 L.Ed. 408), appellant urges that, because the chase which culminated in the collision began at a location covered by the policy and merely continued to the point of accident a short distance beyond the east line of insured's property, the chase and collision must be construed as inseparable, with the sequence that the accident must be held to have occurred on ways "immediately adjacent" to appellant's...