Aetna Cas. & Sur. Co. v. Cartmel

• Decision Date: 20 May 1924
• Citation: 100 So. 802,87 Fla. 495
• Parties: AETNA CASUALTY & SURETY CO. v. CARTMEL.
• Court: Florida Supreme Court

100 So. 802

87 Fla. 495

AETNA CASUALTY & SURETY CO. v. CARTMEL.

Florida Supreme Court

May 20, 1924

Action by Frank Cartmel against the AEtna Casualty & Surety Company. The circuit court affirmed a judgment of the civil court for plaintiff, and defendant brings certiorari.

Judgment quashed.

Syllabus by the Court

SYLLABUS

Contracts liberally construed in favor of insured. The rule for the construction and interpretation of insurance contracts is that the policy must be liberally construed in favor of the insured, so as not to defeat, without a plain necessity, his claim to the indemnity which, in making the insurance, it was his object to secure.

Language given popular and usual significance, unless context requires different construction. While insurance contracts should be construed most strongly against the insurer, yet language used in a policy of insurance is to be given its popular and usual significance, unless the context requires a different construction.

Facts held not to establish 'collision' under automobile insurance contract. A contract of insurance indemnified the owner against loss or damage sustained to an automobile described 'if caused solely by collision with another object, either moving or stationary.' In an action on the policy it was proved at the trial that 'all of a sudden' the roadbed 'gave way under the car.' and it 'went down in soft sand' and 'stuck.' Held, not a 'collision' within the meaning of the term as employed in the policy.

COUNSEL

[AETNA CAS & SUR CO V CARTMEL 100 So. 802(1924)] Marks, Marks & Holt, of Jacksonville, for petitioner.

George C. Bedell, of Jacksonville, for respondent.

OPINION

WEST J.

This action is upon an insurance policy indemnifying the insured against loss or damage to any automobile described in the warranties thereof, caused solely by collision with another object, either moving or stationary. Upon a trial in the civil court of record of Duval county there was a directed verdict for plaintiff. On appeal to the circuit court. the judgment was affirmed. Petitioner applied to this court for writ of certiorari, and writ was issued.

The declaration alleges that the certain automobile of plaintiff referred to and described in the warranties of the policy sued on, 'was damaged by striking a portion of the roadbed, and loss was thereby occasioned to the plaintiff to the amount of, to wit, $1,200, in such circumstances as to come within the promise and undertaking of said policy.'

The printed policy covers loss or damage 'if sustained within the period covered by [AETNA CAS & SUR CO V CARTMEL 100 So. 802(1924)] this policy, and if caused solely by collision with another object, either moving or stationary (excluding, however, all loss or damage by fire arising from any cause whatsoever, and all loss or damage caused by striking any portion of the roadbed or by striking the rails or ties of street, steam, or electric railroads).' But the policy was amended by indorsement attached thereto by which 'it is understood and agreed that, as respects insurance granted thereunder against loss or damage to the insured automobile by collision, that part of the provision which excludes 'loss or damage caused by striking any portion of the roadbed or by striking the rails or ties of street, steam or electric railroads' is hereby expunged.' So that, as amended, the policy indemnified the insured against loss or damage to the automobile described 'if sustained within the period covered by this policy and if caused solely by collision with another object, either moving or stationary (excluding, however, all loss or damage by fire arising from any cause whatsoever).'

The petitioner contends that the facts proved dd not show a collision reasonably within the contemplation of the parties when the policy was procured. Respondent maintains that the whole case turns upon the construction of the policy as amended by the 'rider' attached thereto.

It may be conceded that the effect of the amendment was to render the company liable upon the contract for and indemnify the insured against loss or damage resulting from collision by the automobile with the roadbed, on the theory that the roadbed is 'another object' within the meaning of that term as used in the policy.

What are the facts? They are contained in plaintiff's evidence, given at the trial, undisputed, conceded to be true. Do they constitute a 'collision' by plaintiff's automobile 'with another object,' against which he was indemnified by the contract of insurance from loss or damage?

The witness testified that the automobile was damaged on the beach south of Pablo, and that he was driving it at the time. He said:

'I was riding along, and all of a sudden the beach gave way under the car, and it went down and stuck; I could not get it out. I did everything I could to get it under its own power, but the wheels were just spinning around and kept going down lower.'

After stating that he employed a man to get the car out, he said:

'He [the man employed] went down there that afternoon but could not do anything with it. The car had sunk so fast, and he didn't get it out until the next day. * * * I discovered later on that it was full of sand and would have to be taken all to pieces and cleaned up, and that it sustained damage, for which I am suing in this case. That damage was caused by the tide, the salt water and sand getting into the bearings. There was no sand and water in there before this cave-in on the beach.'

On cross-examination he testified:

'I was headed south when my car went down, but I had up enough speed to get through it, and that frightened me--I didn't like it, and I immediately turned around to go back, and it was when I turned around and started back that the car got stuck so I couldn't get it out. I didn't go any further south past this point where the beach was soft than a sufficient distance to turn around. I turned around and immediately started back, but it is correct that I had completed the turn when my car became stuck.'

On redirect:

'I was going south on the beach when the road gave way and the car went down in soft sand, but I went on and got out on hard sand after that first time; when going back, the beach gave way the second time, and I couldn't get out--that was when it came up and washed over the car--then I was headed north toward home. I never did get the car out after that, until it was pulled out, as I have testified.'

This court is in accord with the recognized rule for the interpretation of insurance contracts that----

'The policy must be liberally construed in favor of the insured so as not to defeat without a plain necessity his claim to the indemnity which in making the insurance it was his object to secure.' Nat....