Braly v. Commercial Cas. Ins. Co.
| Citation | 227 P.2d 571,170 Kan. 531 |
| Decision Date | 15 February 1951 |
| Docket Number | No. 38052,38052 |
| Parties | Braly v Commercial Cas. Ins. Co |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court.
1. If the terms of a policy of insurance are ambiguous or obscure or susceptible of more than one construction the construction most favorable to the insured must prevail.
2. As an insurer prepares its own contracts and it is its duty to make the meaning clear, if it fails to do so, the insurer and not the insured must suffer.
3. Where an insurance contract is not ambiguous courts will not make another contract for the parties but will enforce the contract as made.
4. The words of a contract of insurance if clear and unambiguous are to be taken and understood in their plain, ordinary and popular sense.
5. Where it is susceptible of more than one construction the language of a policy of insurance, like any other contract, must, if possible, be construed in such manner as to give effect to the intention of the parties at the time it was made as expressed therein.
6. In determining intention of the parties under the rule announced in paragraph 5 of this syllabus the test is not what the insurer intended the words of the policy to mean but what a reasonable person in the position of the insured would have understood them to mean.
7. The terms of an insurance policy, providing for liability in case death of the insured resulted from accidental means "While riding as a passenger In A Passenger Elevator used for passenger service only in a place regularly provided for the sole use of passengers," examined and it is held: (1) The term "a passenger elevator" appearing in the quoted provision of the policy is a generic term, susceptible of more than one construction, and is not to be construed as having reference only to elevators provided for the use of the general public in office buildings, stores, hotels, apartment houses and other buildings of that character. (2) the word "passengers" as used in such provision has reference to the utilization of an elevator and not to its carrying capacity.
8. The fact an insured at the time of an accident on an elevator was an employee of the company maintaining the elevator did not exclude him from "passenger" classification under an accident policy providing for liability if his death was caused by accidental means while riding as a passenger in a passenger elevator.
9. When in an action to recover death benefits under an accident insurance policy containing a provision such as is quoted in paragraph 7 of the syllabus the insurer seeks to avoid liability on the ground the accident for which recovery is sought is covered by some specific exception in the policy the burden is on the insurer to prove the facts which bring the case within the specified exception.
10. This court adheres to the general rule that proof of injury or death furnished by a beneficiary to an insurance company is admissible in evidence against such beneficiary as an admission against interest.
11. In an action to recover death benefits under an accident insurance policy, providing for liability if the death of the insured occurred from injuries received "While riding as a passenger In A Passenger Elevator used for passenger service only in a place regularly provided for the sole use of passengers", wherein the undisputed evidence was to the effect the insured met his death from injuries received while actually within or at least while getting on or off a lift in a grain elevator which was used for passenger service only in a place regularly provided for the sole use of passengers, the record is examined and, under all the facts and circumstances as fully set forth in the opinion, it is held: (1) Whether the lift on which insured was riding at the time of the accident was a "passenger elevator" within the meaning of that term as used in the policy was a question of fact and properly submitted to the jury; (2) the trial court did not err in overruling defendant's (a) demurrer to the petition, (b) demurrer to plaintiff's opening statement, (c) demurrer to the plaintiff's evidence and (d) motion for judgment non obstante; (3) a letter written by the beneficiary in response to a request from the insurer for further information regarding the cause and circumstances of the insured's death was tantamount to a supplemental proof of loss and was admissible in evidence as an admission against her interest; and (4) the trial court's action in refusing to admit such supplemental proof of loss in evidence when it was offered by the defendant was erroneous and requires the granting of a new trial.
John F. Hayes, of Hutchinson (Donald C. Martindell, William D.P. Carey, Wesley E. Brown, Edwin B. Brabets, Robert J. Gilliland, C. William Miller and Robert C. Martindell, all of Hutchinson, on the briefs), for appellant.
Abraham Weinlood, of Hutchinson (Don Shaffer, of Hutchinson, on the briefs), for appellee.
This was an action to recover death benefits under an accident insurance policy. The appeal is from a judgment for plaintiff, wife of the deceased insured and beneficiary under the policy, rendered by the trial court upon special and general verdicts returned by a jury. Errors, assigned as grounds for reversal of the judgment and essential to disposition of the appeal, will be given consideration in the order in which they appear in defendant's specification of errors.
On March 6, 1941, defendant Commercial Casualty Insurance Company issued an accident policy of insurance to H.F. Braly, a resident of Coldwater, for an annual premium of $1 per year. The policy provided death benefits only under specified limited conditions in the amount of $1500, which increased $100 per year for 5 years if the policy should be kept continuously in force, payable to the wife of the insured as beneficiary.
Included in the policy thus issued is a provision that the death benefit covered by its terms should be payable if the accidental death of the insured should occur: "While riding as a passenger In A Passenger Elevator used for passenger service only in a place regularly provided for the sole use of passengers."
Such policy also contains an exception clause which reads in part: "This insurance does not cover * * * death or loss * * * while getting on or off a conveyance * * *."
For all purposes of this appeal it is conceded H.F. Braly met his death by external, violent and accidental means on November 18, 1943, that on such date he had paid premiums on the policy for 3 years bringing death benefits under the conditions there specified to $1800, that proof of loss was made by the beneficiary (plaintiff) within the time and manner required by its terms and that in view of the conditions and circumstances under which the insured met his death provisions of the policy on which the rights of the parties must ultimately depend are those heretofore quoted.
At the outset appellant contends the trial court erred in overruling its demurrer to the petition. No useful purpose would be served by setting forth the allegations of that pleading in detail. It suffices to say it contains express allegations to the effect the insured met his death while riding as a passenger in a passenger elevator located in a grain elevator and other averments of similar import which, if given the benefit of inferences to which they are entitled under the record, state facts sufficient to constitute a cause of action on the policy.
The next three errors relied on by appellant as grounds for reversal of the judgment can be considered together. In our opinion they present the most difficult questions involved in the lawsuit. They are that the trial court erred (1) in overruling its demurrer to appellee's opening statement to the jury, (2) in overruling its demurrer to her evidence, and (3) in overruling its motion for judgment notwithstanding the general verdict.
Except for one question to which we shall presently refer, the gist of the over-all position of appellant on all three of the errors thus assigned is the same and is to the effect that the opening statement, the evidence, and the answers of the jury to the special questions show that the conveyance located in the grain elevator where the insured was working, and in which it is conceded he was riding immediately prior to his death, was not a passenger elevator used for passenger service only in a place regularly provided for the sole use of passengers, hence there is no liability under the policy sued on. This position necessarily requires an examination of the evidence and the answers returned by the jury to special questions. The opening statement requires little attention inasmuch as the record discloses it was in line with evidence subsequently adduced by the appellee and must stand or fall upon our decision with respect to the legal sufficiency of the facts disclosed by the testimony on which appellee relies to sustain her cause of action.
Summarized as to substance the fair import of the evidence can be stated as follows: The Wolcott-Lincoln Grain Elevator Company maintains and operates a grain elevator at Coldwater. The building in which it carries on its business is a structure consisting of several floors or stories. Ascent and descent to and from the upper floors of the structure is accomplished by means of ladders or by riding on the conveyance herein involved, referred to by the witnesses as a "lift". This lift is a one man conveyance operated by the person riding it, is used exclusively by human beings, chiefly employees and inspectors, and is never employed for the purpose of carrying freight.
The construction of the conveyance heretofore mentioned, reflected by the testimony of the witnesses, is described by appellee in her brief as follows: ...
To continue reading
Request your trial
-
Westchester Fire Ins. Co. v. City of Pittsburg, Kan.
...for the parties. Patrons Mut. Ins. Ass'n v. Harmon, 240 Kan. 707, 713, 732 P.2d 741, 746 (1987); Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 538-39, 227 P.2d 571, 577 (1951). The language of an insurance policy, like any other contract, must, if possible, be construed in such a man......
-
Halper v. Aetna Life Ins. Co. of Hartford, Conn.
...is to enforce the contract as made. These rules of law were thoroughly discussed, analyzed and applied in Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 227 P.2d 571; Knouse v. Equitable Life Ins. Co., 163 Kan. 213, 181 P.2d 310, and cases cited Kaplan v. New York Life Ins. Co., 19 Mi......
-
Koehn v. Central Nat. Ins. Co. of Omaha, Neb.
...States Fire Ins. Co., 141 Kan. 897, 44 P.2d 236; Baker v. Continental Ins. Co., 155 Kan. 26, 28, 122 P.2d 710; Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 227 P.2d 571; and Saul v. Saint Paul-Mercury Indemnity Co., 173 Kan. 679, 250 P.2d Words employed in contracts of insurance are......
-
Shunga Plaza, Inc. v. American Emp. Ins. Co.
...285, 133 P.2d 89; and Gorman v. Fidelity & Casualty Co. of New York, supra [8 Cir., 55 F.2d 4]." (See, also, Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 538, 227 P.2d 571.) Also in Anderson v. Rexroad, 175 Kan. 676, 266 P.2d 320, we " * * * The established rule is that the intentio......