Ayres v. Harleysville Mut. Cas. Co

• Citation: 2 S.E.2d. 303
• Parties: AYRES. v. HARLEYSVILLE MUT. CASUALTY CO.
• Decision Date: 10 April 1939
• Court: Virginia Supreme Court

2 S.E.2d. 303

AYRES.

v.HARLEYSVILLE MUT. CASUALTY CO.

Supreme Court of Appeals of Virginia.

April 10, 1939.

Error to Circuit Court, Amherst County; Edward Meeks, Judge.

Garnishment proceeding by Marion Ayres against Harleysville Mutual Casualty Company, garnishee, etc. To review an adverse judgment, plaintiff brings error.

Reversed and final judgment entered for plaintiff.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, J J.

J. Tinsley Coleman, Jr., of Lovingston, and John D. Easley, of Lynchburg, for plaintiff in error.

Sinnott & May and V. P. Randolph, Jr., all of Richmond, and Irvin Bendiner, of Philadelphia, Pa, for defendant in error.

BROWNING, Justice.

A man named David Aronovitch, sometimes operating, as well, under the trade name of King's Distributors, was engaged in the business of supplying retailers with beer which was procured, in part, from a brewery in the city of Rochester, New York, and distributed from the firm's ware-rooms in Lynchburg, Virginia. For its purposes the firm had five trucks, upon which it carried liability insurance with the defendant in error, Harleysville Mutual Casualty Company, Harleysville, Pennsylvania.

Hereafter the firm will be referred to as the insured, the Casualty Company as the insurer and the plaintiff in error, Ayres, as the plaintiff.

At the time of the accident, which is the basis of this action, the insured's Dodge tractor, connected with its Black Diamond semi-trailer, was on its way from Lynchburg to Rochester in charge of a man named Scruggs, who was driving the vehicle at the moment, and by whose side the plaintiff was sitting not, at the time, doing any particular thing. The facts incident to the relation of these two men to the insured and to each other and to the truck, present no conflict.

The case of Aronovitch v. Ayres, 169 Va. 308, 193 S.E. 524, 525, is the forerunner to this case. This case grew out of that. In that case, which sounded in tort, Ayres, the plaintiff, who was very seriously injured in the accident, recovered a verdict and judgment against the insured for $20,607. A portion only of this judgment was paid. It was proven in that case, which was its turning point, that the insured was negligent in failing to have his truck properly equipped and in having brakes thereon which were either insufficient or maladjusted.

In the opinion in that case, this was said: "About two weeks later, he (Ayres) was re-employed as helper and assistant driver to a man named Scruggs. In that capacity two trips north were made, and it was on his third trip, and on October 16th, that the accident under review occurred. Scruggs was in general charge; Ayres was his assistant and relief driver."

Speaking of the duty of the insured to have adequate and properly adjusted brakes upon the truck, this was said: "This obligation was recognized by the owner who directed Scruggs to inspect the truck, its brakes, etc, at the end of each hundred miles and to keep equipment up to standard. Moreover, Ayres said that Aronovitch gave him specific instructions to report to Scruggs anything which might need attention. Something did need attention. Ayres twice told Scruggs on their last trip that the brakes were not holding, and Scruggs twice promised to give them prompt attention."

The following statement was also made: "It is also true that Ayres and Scruggs were in fact in some aspects of their service fellow servants."

And again we quote the following: "Each in shifts drove the truck, and each helped to load and unload it. But, as we have seen, its care was in terms put upon Scruggs alone; to him Ayres was directed to report and did report. Upon him was placed the burden of seeing that it was kept in condition. He was, quoad this duty, vice principal."

These observations are well fortified by the evidence in that case. The evidence in this case accentuates the facts upon which they are predicated.

The evidence, here, shows that on the long distance trips described, using the trailer type truck, two men were necessary for its safe conduct. In fact, Aronovitch, himself, testified to this and he further described Ayres' duties in this way: "He was to be a driver with the other man on the truck for the purpose of driving the truck from Lynchburg to the point of destination and back again."

Upon the judgment for the plaintiff an execution was issued and upon suggestion of liability of the insurer a garnishee summons was sued out against the insured and the insurer, requiring the latter to answer the suggestion and to disclose wheth-

[2 S.E.2d. 205]

er it was really a debtor to the insured, Aronovitch. The insurer denied liability and evidence was taken upon the issue.

The trial court sustained the motion of the insurer to strike the evidence and directed the jury to return a verdict in favor of the insurer, holding' that the plaintiff came within the exception in the insurance policy.

•The pertinent portion of the exception in the policy is the following: "Nor shall any policy cover injury to any employee or employees of the insured while engaged in operating or caring for any of the automobiles covered by this policy."

Our concern is with the meaning of these few lines comprising twenty-nine words, appearing in the setting wnich is afforded by the facts stated. Thus our task is within restricted lines.

The text writers and the courts speak of exceptions found in automobile insurance policies similar to the one we have quoted as "exclusion clauses." The petition and brief of the plaintiff in error states that the clause in question is "plain and unambiguous." With this we are in agreement, unless there be a latent ambiguity which is relieved by the extraneous facts which are furnished by the circumstances which cannot be separated from a fair view of the matter.

It is urged by the plaintiff in error, with ability and ingenuity, that the clause in question does not exclude him from the operation and effect of the insurance feature of the policy because, forsooth, he was not engaged in operating or caring for the truck at the time of the accident. He argues that the word "while" in the connection in which it is used refers to and means the precise time of the accident; that the word "engaged" refers, in its connection, to the specific personal action at the specific time, and that the phrase "in operating or caring for" signifies the manual, physical control of the movement of the truck, in other words, to the act of driving it at the precise time of the accident.

The insurer contends contra that if the meaning urged above be adopted, the obvious intention of the parties to the contract would be frustrated; that the patent meaning of the clause would be defeated by a strained, narrow, unnatural and unjustified construction; that, in short, the court is asked to make a contract for the parties which they did not make for themselves and never intended to make. This, of course, a court cannot do.

The text writers and the cases from the appellate courts of nearly all of the states accentuate the rule that ambiguous and doubtful language must be interpreted most strongly against the insurer. They stress the rule that insurance policies are to be liberally construed in favor of the assured and exceptions and exclusions are to be strictly construed against the insurer.

In this connection we quote the following from Cyclopedia of Insurance Law (Couch) vol. 1, section 188a, page 402:

"Various reasons have been assigned for the rule of construction against the insurer and in favor of the insured. Perhaps the most generally assigned reason for the rule is, in effect, that to hold otherwise, without an absolute necessity therefor, would tend to subvert the very object and purposes of insurance, which is that of indemnity to the insured in case of loss or the payment of money on the happening of a contingency, which indemnity should be effectuated, rather than defeated, to which end the law makes every rational intendment, so as to give the fullest protection possible to the interests of the assured. In fact, where two interpretations equally fair may be made, that which allows a greater indemnity will prevail. And since indemnity is the ultimate object of insurance, the construction should be in favor thereof, and likewise for the benefit of the trade, for, in case of doubtful construction, insurance is regarded as a contract unberrimae [sic] fidei. And every presumption in favor of good faith will be indulged in in construing policy clauses, the presumption being that an insurance company, in choosing the language of its policy, did not intend any jugglery or equivocation. This is in accordance with the rule that policies of insurance create reciprocal rights and obligations which require the utmost good faith by both parties. And the strictum jus or apex juris is not to be laid hold on. And the reason for the rule of construction against the insurer is that policies of insurance are made on printed forms carefully prepared in the light of wide experience, by experts employed by the insurer, and in the preparation of which the insured has no voice. Still another version of this reason is that the rule is based on the fact that insur-ance contracts are usually prepared by the insurer, who seeks so to frame them as to limit their scope, so that it is only fair that any doubt as to the meaning of the language used should be resolved in favor of the insured, in order to avoid the injustice that would result from a narrow and technical construction. That is, contracts of insurance couched in language selected by the company for its own purpose, and printed and prepared by skilled experts, and offered to the lay public, must, when ambiguous, be construed in favor of the assured, or, in other words, that since the language of the policy is that of the insured, it is both reasonable and just that its own words should be construed most strongly against...