Bobier v. National Cas. Co.
| Decision Date | 19 April 1944 |
| Docket Number | 29637. |
| Citation | 143 Ohio St. 215,54 N.E.2d 798 |
| Parties | BOBIER v. NATIONAL CASUALTY CO. et al. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. A policy of indemnity insurance is to be construed in the light of the subject matter with which the parties are dealing and the purpose to be accomplished, and the language used must be given its ordinary and commonly accepted meaning.
2. In case of ambiguity in the language used by the insurer in an indemnity insurance policy, such language will be construed most favorably to the insured.
3. Where an insurer drafts and issues an automobile indemnity policy, providing therein for insurance against liability resulting from injury to or destruction of property, arising out of the ownership maintenance or use of an automobile including loading an unloading thereof, but fails to define in the policy what shall constitute 'loading and unloading,' such phrase is ambiguous and will be given the construction most favorable to the insured.
4. 'Loading,' as used in such insurance policy, begins at the time the insured or his agents or servants connected with the truck, receive the article and, as part of a continuing operation, place it upon the truck; and 'unloading' ceases when the article is taken from the truck by such employees and, as part of a continuing operation, is delivered to the customer or to the place designated for delivery.
Appeal from Court of Appeals, Cuyahoga County.
Judgment entered in favor of plaintiff against the National Casualty Company and in favor of defendant Columbia Casualty Company.
Jack Bobier, doing business as Federal Appliance Service Company (hereinafter called plaintiff), filed an action in the Municipal Court of Cleveland against the National Casualty Company (hereinafter called National) and the Columbia Casualty Company (hereinafter called Columbia), defendants.
In the petition plaintiff sets forth two causes of action, the first against National and the second against Columbia.
The substantive facts alleged in the statement of his first cause of action are:
On August 29, 1941, plaintiff's employees were carrying a stove from the furniture store of Siegelman & Roth Company preparing to load it into one of plaintiff's trucks. While so engaged the employees negligently damaged a davenport, the property of Siegelman & Roth Company, to the extent of $20 for which the owner made claim against the plaintiff. Plaintiff notified National and both National and Columbia denied liability and, in order to avoid threatened litigation by the owner of the davenport, plaintiff paid the claim. Prior to the date of this accident National had executed and delivered to plaintiff an automobile indemnity policy which was in full force and effect on such date, and by the provisions of the policy National agreed to indemnify plaintiff against loss for property damage arising out of the ownership, maintenance or use of any automobile therein described to the extent of $5,000.
The statement of the second cause of action makes substantially the same claim against Columbia by virtue of a general indemnity policy against loss for property damage, which policy was executed and delivered by Columbia on September 18, 1940, and was in full force and effect on the date of the accident.
The prayer of the petition is that the court fix the liability of the respective defendants and render judgment in favor of the plaintiff in the sum of $20 and costs.
Each defendant filed a separate answer. The answer of National admits the execution and delivery of the policy and denies specifically and generally all other allegations of the petition.
The answer of Columbia admits the execution and delivery of the policy, the time and place of the accident, the amount of damage paid by plaintiff to Siegelman & Roth Company denies liability under provisions of its policy and, in addition to those admissions and denials, set forth four separate defenses.
The first two defenses aver certain provisions of the policy which Columbia claims excludes the accident in question from the provisions of the policy. The third defense sets forth that National is primarily liable and that Columbia, if liable at all, is secondarily liable. The fourth defense is that if Columbia is liable at all it is liable for only 20% of the amount claimed and that National is liable for 80% thereof.
Thereafter by agreement of all parties, plaintiff filed a supplemental petition setting forth four additional causes of action, Nos. 3, 4, 5 and 6, involving additional claims for damages caused by negligence of plaintiff's employees at other times and places.
Upon the trial plaintiff's motion to dismiss causes of action Nos. 4, 5 and 6 was granted, so that we are concerned only with the third cause of action set forth in the supplemental petition. It is therein averred that on September 25, 1941, plaintiff's employees negligently damaged the hallway of premises belonging to one Luxton, while carrying a stove into the premises; that the reasonable cost of repairing the damage was $24.50 which plaintiff paid in order to avoid suit; and that each defendant disclaimed liability for that damage.
It was further agreed that the answers filed prior to the filing of the supplemental petition should be considered as answers to that pleading.
The cause came on for trial and, the parties having waived a jury, was submitted to the court upon the pleadings and the evidence.
Plaintiff offered testimony tending to sustain the averments of the petition and supplemental petition. The original policies had been stolen before the trial and could not be produced. By agreement of counsel a copy of a policy with all extensions and riders was offered, marked Exhibit 1, and admitted, and a copy of the form of policy was marked Exhibit la. These exhibits had reference to the policies issued by National upon which were based the claims alleged in the first and third causes of action.
A copy of a policy, extensions and riders were offered and admitted as Exhibits 2, 2a and 2c. These exhibits had reference to policies issued by Columbia upon which were based the claims against it.
National offered no testimony and Columbia offered the testimony of one witness, to the effect that plaintiff had paid the two claims.
The court rendered judgment in favor of plaintiff against Columbia and against the plaintiff in favor of National. Ohio Mun.Ct., 10 Ohio Supp. 87. An appeal was perfected to the Court of Appeals by Columbia, wherein the judgment of the Municipal Court was affirmed. The cause is here for review pursuant to the allowance of a motion to certify the record.
Harry A. Blachman, of Cleveland, for appellee Bobier, d.b.a. Federal Appliance Service Co.
Flynn & Benesh, of Cleveland, for appellee National Casualty Co.
McKeehan, Merrick, Arter & Stewart and Smith Warder, all of Cleveland, for appellant.
We have no difficulty with the proposition that plaintiff is entitled to a recovery. The real controversial question is whether National or Columbia or both shall be held liable.
The precise question involved has never been determined by this court, however the court has on numerous occasions announced certain principles of law applicable to the construction of indemnity insurance policies, which are important in the consideration of the specific question presented. From the decided cases the following general rules may be deduced.
One. A contract of indemnity insurance should be construed in the light of the subject matter with which the parties are dealing and the purpose to be accomplished.
Two. The language used in a contract of indemnity insurance should be construed in its ordinary and commonly accepted meaning.
Three. Where the language used in a policy is chosen by the insurer, in case of ambiguity therein, the terms and conditions thereof will be construed most favorably to the insured.
With these general principles in mind we shall first direct our attention to the liability of National under the provisions of the automobile indemnity insurance policy issued by it.
The insuring agreement reads in part as follows:
'Coverage B--Property Damage Liability. To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the ownership, maintenance or use of the automobile.
Under the heading 'Conditions' this language is used:
'2. Purposes of Use Defined. (a) The term 'pleasure and business' is defined as personal, pleasure, family and business use. (b) The term 'commercial' is defined as the transportation or delivery of goods, merchandise or other materials, and uses incidental thereto, in direct connection with the named insured's business occupation as expressed in Item I. (c) Use of automobile for the purposes stated includes the loading and unloading thereof.'
Item I defines the insured's 'business occupation' as 'Appliance Installation Service.'
The liability of this defendant is dependent upon the answer to two questions.
First. Did the damage complained of occur during the process of loading or unloading the truck?
Second. Was the damage caused by an incidental use of the truck in connection with the plaintiff's 'business occupation'?
National knew that the plaintiff's business, at least in part, consisted in the pickup, delivery and installation of appliances for customers.
In the statement of the first cause of action it is claimed the damage occurred while a stove was being carried fron a store by plaintiff's employees to be loaded into the truck,...
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