London & Lancashire Indem. Co. v. Neil Barron Fuel Co.
| Decision Date | 12 February 1940 |
| Docket Number | No. 290.,290. |
| Parties | LONDON & LANCASHIRE INDEMNITY CO. OF AMERICA v. NEIL BARRON FUEL CO. |
| Court | U.S. District Court — Western District of Missouri |
Michaels, Blackmar, Newkirk, Eager & Swanson, of Kansas City, Mo., for plaintiff.
Leslie A. Welch, of Kansas City, Mo., for defendant.
The question is one of construction of the clause: "This policy does not cover claims on account of such injuries * * caused by reason of the ownership, maintenance and/or use by the Assured of any * * * vehicle or by any person while driving or using the same."
Plaintiff, which seeks a declaratory judgment of its non-liability under its policy covering injuries to third parties arising out of the operation of Assured's retail coal business, contends that the above quoted clause, appearing in the policy as one of exclusion or exception, exempts it from liability for an injury to a pedestrian occasioned by the pedestrian being struck by a shovelful of coal thrown from assured's truck by the driver while unloading the contents of the truck into a man-hole in a sidewalk, and while the truck was standing at the curb for that purpose.
In support of that contention it is ably argued that the word "use" is unambiguous and includes the application of the "manpower" of the employee and the inaccuracy of his aim in throwing coal from the truck during the process of unloading it, because that process was an incident to the "use" of the truck.
The accuracy of the legal principle that absent ambiguity there is no place for construction, must be readily conceded. The correctness of the doctrine that ambiguity existing the contract will be construed strictly against the party who prepares it, in this instance the insurer, will likewise not be seriously controverted. If, therefore, the exclusion clause is ambiguous, the contract will be construed in favor of coverage and by reason of the force of that rule it will be of no moment that this court may lean toward or away from the construction advanced by counsel for plaintiff. For if different and opposing constructions might reasonably be given this contract by the parties, mental honesty would forbid the assertion by the Court that its individual construction, although amply supported by authority, eliminated all reason from the opposing viewpoint. Such is not the criterion for the determination of the presence or absence of ambiguity. If there be a reasonable basis for difference of opinion, ambiguity...
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