Automobile Underwriters v. Camp

• Decision Date: 28 June 1940
• Docket Number: 27365.
• Citation: 28 N.E.2d 68,217 Ind. 328
• Parties: AUTOMOBILE UNDERWRITERS, Inc., et al. v. CAMP et al.
• Court: Indiana Supreme Court

28 N.E.2d 68

217 Ind. 328

AUTOMOBILE UNDERWRITERS, Inc., et al. v. CAMP et al.

No. 27365.

Supreme Court of Indiana

June 28, 1940

For former opinion, see 27 N.E.2d 370.

Appeal from Pike Circuit Court; Eldo W. Wood Judge.

Fenton, Steers, Beasley & Klee, of Indianapolis, Padgett & Rogers, of Washington, and Ely Corn & Nixon, of Petersburg, for appellant.

McDonald & McDonald, of Princeton, John K. Chappell, of Petersburg, and Allen, Hastings & Allen, of Washington for appellee.

ROLL Chief Justice.

Appellee in her application for a rehearing, waives all questions presented in her original brief except one, and, as to that question, appellee very earnestly insists that this court has over-looked some of its former decisions which she contends are almost identical from a factual standpoint with the case at bar. The proposition is thusly stated by appellee: '* * * with the two 'riders', defendant's Exhibits 'A' and 'B' considered as a part of the policy, there is such ambiguity in the policy, considered as a whole, as requires the court to apply the rule it has so often announced and followed, that when the language of an insurance policy is capable of two constructions, that construction must be adopted which is most favorable to the insured, that which affords indemnity rather than that which denies it.' In support of her contention that the policy is ambiguous, she points out that clause 'A' of the 'rider', designated as defendant's Exhibit 'A', purports to afford protection to appellee because by this clause the appellant agrees: '* * * to pay any loss by reason of liability imposed by law upon the subscriber * * * for damages, on account of bodily injuries including death resulting therefrom, accidentally inflicted upon any person or persons as the result of, accident occurring * * * while this policy is in force * * * caused by the use or operation of the automobile described herein * * *'.

In her brief on rehearing she says: 'This clause is certainly broad enough to include the appellee Camp since she is clearly a 'person' and her injuries were the result of use and operation of the automobile covered by the policy.'

She further states: 'The court must surely attach some importance to the fact that no where in clause 'A' of the 'rider' (defendant's exhibit 'A') is there any language either directly stating, or even susceptible of an inference, that the coverage thereby afforded is limited by language found elsewhere.'

She also points to the provisions of condition 'J' of the so called 'master-sheet'. Clause 'J' is a general insuring clause. We quote the following from page 7 of appellee's brief: 'The unequivocal statement in two different places in the policy that it indemnifies insured 'against liability imposed by law for damages on account of Personal Injury To Others' forbids a limitation entirely cutting off such indemnity for injury to an 'occupant' of insured's car, 'hidden away in small type in another part of the policy,' with nothing whatever to call such limitation to the attention of the insured.'

Upon this point she leans heavily upon the case of Hessler v. Federal Casualty Company, 190 Ind. 68, 129 N.E. 325, 14 A.L.R. 1329, and argues that the provisions above pointed out brings this case clearly within the law as announced in that case. A reading of the Hessler case reveals the distinction in the two cases. In the Hessler case the action was upon a policy of accidental insurance for the sum of $500. On the back of the policy, in bold letters, it was stated that, '* * * it also covers all bodily injuries caused by accidental means, such as * * * gunshot wounds * * * injuries inflicted by robbers or highwaymen * * * at home, in the office, store, shop,' etc.

There was also the provision in the policy that the insurance was subject to all the conditions and limitations therein contained and endorsed thereon. Printed in small print there were three clauses. Each contained conditions or limitations. In clause 'N' it was provided that if '* * * death, disability or loss, was due wholly or in part to, or resulting directly, or indirectly from, injuries intentionally inflicted upon the assured by himself or by any other person, the company would be liable for 20% of the force of the policy.'

The admitted facts in that case were that the assured was shot while he was working in the store, by a person who entered the store for the purpose of robbery. It will be noted that the part referred to above as being on the back of the policy was in fact a part of the body of the policy itself, but the policy was so folded that the quoted part formed one side of...