American Cas. Co. of Reading, Pa. v. Cutshall

• Decision Date: 05 June 1959
• Citation: 326 S.W.2d 443,9 McCanless 234,205 Tenn. 234
• Parties: , 205 Tenn. 234 AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, v. Dennis CUTSHALL.
• Court: Tennessee Supreme Court

Page 443

326 S.W.2d 443

9 McCanless 234, 205 Tenn. 234

AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, v. Dennis CUTSHALL.

Supreme Court of Tennessee.

June 5, 1959.

N. R. Coleman, Jr., Greeneville, Fraker, Silvers & Coleman, Greeneville, of counsel, for plaintiff in error.

John A. Armstrong, Greeneville, for defendant in error.

TOMLINSON, Justice.

The sole question here is what is the proper construction of that provision hereinafter quoted of an accident insurance policy of which Vestal Cutshall is a beneficiary. Because the facts are stipulated, the appeal of the Insurance Company is directly to this Court.

While Cutshall was riding as a passenger on a motorcycle being operated upon a public highway the operator thereof lost control of it. The result was that this motorcycle skidded directly into the path of an oncoming automobile. By reason of the resulting collision Cutshall

'was thrown from the motorcycle over the hood of the automobile and struck the pavement, shoulder and ditch of the Highway, without at any time coming into contact with any part of the automobile.' (Emphasis added.)

In the necessary treatment of his injuries, he sustained hospital and medical expenses in excess of the $500 limitation provided therefor by the policy. The Insurance Company refused to reimburse him on the ground that the accident did not fall within the scope of the policy. Cutshall sued. The Circuit Court awarded him a judgment of $500, the limitation provided by the policy.

The policy agrees to pay all reasonable medical and hospital expenses of a beneficiary

'who sustains bodily injury, sickness, or disease, including death resulting therefrom, hereinafter called 'bodily injury', caused by accident while occupying or through being struck by an automobile.' (Italics supplied.)

That is, in so far as this suit is concerned, the contract is to pay medical and hospital expenses to the extent of $500 of a beneficiary

'who sustains bodily injury * * * caused by accident * * * through being struck by an automobile.'

The position of the Insurance Company is that this language means that the body of the beneficiary must come 'into physical contact with an automobile before he can recover'; that, therefore, Cutshall does not come within the terms of the contract. The beneficiary insists, and the Court held, that physical contact was not necessary.

The nearest approach in Tennessee to a decision of this question is Maness v. Life & Casualty Insurance Company, etc., 161 Tenn. 41, 28 S.W.2d 339. The insurance policy there protected the insured

'against the result of bodily injuries * * * effected solely by external, violent and accidental means strictly in the manner hereafter stated * * * if the insured shall be struck by a vehicle which is being propelled by * * * gasoline * * * while insured is walking or standing on a public highway.'

While the insured in that case was walking along a graveled highway he was struck in the eye, and the eye destroyed, by a rock thrown into the air by the turning wheels of an automobile which passed him at a rapid speed. There, as here, the insurer defended on the ground that he had not been struck by 'a vehicle'; hence, that his injury did not fall within the risk insured against. This Court in rejecting that insistence said this:

'The peril against which the insured here had bought protection was that of a blow from a moving vehicle on a public highway. He could not, of course, have been struck except by a vehicle in motion. No part of the automobile hit his eye. The automobile hit the rock and cast it into his eye. A blow from the automobile was the efficient and proximate cause of his injury. It seems immaterial that the moving car struck him with a rock instead of with some part of the machine. He was none the less struck, and the agency which inflicted the blow was a moving vehicle upon a public highway, against blows from which he had contracted for indemnity.'

With equal accuracy it can be said in this case that the peril insured against was that of a blow from an automobile. No part of the automobile hit his body, but the automobile and the motorcycle collided, causing a blow between, and by, the two. That blow injured Cutshall. It is...