Christoffer v. Hartford Acc. & Indem. Co.

• Decision Date: 01 March 1954
• Docket Number: No. 17,17
• Citation: 123 Cal.App.2d Supp. 979,267 P.2d 887
• Parties: 123 Cal.App.2d Supp. 979 CHRISTOFFER v. HARTFORD ACCIDENT & INDEMNITY CO. et al. Appellate Department, Superior Court, Fresno County, California
• Court: California Superior Court

Page 887

267 P.2d 887

123 Cal.App.2d Supp. 979

CHRISTOFFER v. HARTFORD ACCIDENT & INDEMNITY CO. et al.

No. 17.

Appellate Department, Superior Court, Fresno County, California.

March 1, 1954.

Ray W. Hays and James N. Hays, Fresno, for appellants.

John Said, Fresno, for respondent.

KELLAS, Judge.

The facts are agreed to by all parties. On the 20th day of December, 1951, appellants issued an automobile insurance policy to one Nora Lee Haskins, as the owner of a 1949 Crosley Station Wagon. Such policy contained the following insuring agreement:

'Coverage C--Medical Payments

'To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, ambulance, hospital, professional nursing and funeral services, to or for each person who sustains bodily injury, sickness or disease, caused by accident, while in or upon, entering or alighting from the automobile if the automobile is being used by the Named Insured or with his permission.'

On the 9th day of July, 1952, respondent, brother of the assured, obtained her permission for the use of the car on the following day, purposing to go to Tracy. He departed on the trip as planned, but en route suffered an accident from which resulted his injuries. Respondent has no recollection of events transpiring between a point some distance beyond Merced, California, at which point he had stopped at a service station, and the time when he regained consciousness in the hospital. However, an eyewitness to the accident established the following facts: That at a point one and one-half to two miles east of Livingston on Highway 99, said highway at such point being a divided highway with two westbound lanes, and having a six or eight foot asphalt shoulder, respondent was seen 'in a bent kneed position on his haunches near the left rear wheel' of the Crosley, which was parked about six inches off the northerly shoulder. 'Respondent had his hands on the wheel, apparently either taking it off or putting it on.' (Appellant's Opening Brief, Page 2, Lines 22 and 23.) At this time respondent and the Crosley were struck by an automobile approaching from the rear, which swerved to the right side of the road to accomplish contact. Claim was regularly made upon the appellants under the above-quoted provision of the insurance policy, which was rejected. Action was then filed and judgment rendered in favor of respondent for $2,000 the maximum coverage therefor, it appearing that the medical expenses incurred by him as a result of personal injuries suffered exceeded that amount.

Appellants contend that the facts, as presented to the trial court, do not place the respondent 'upon' the automobile as that word is employed in Coverage 'C'. Respondent contends to the contrary. In seeking the answer to the question posed, the general rules governing the interpretation of contracts should be kept in mind. Pertinent sections are as follows:

Sec. 1636, C.C.: 'A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.'

Sec. 1638, C.C.: 'The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.'

Sec. 1643, C.C.: 'A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties.'

Sec. 1644, C.C.: 'The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed.'

Since the respondent could not in any view be said to be 'in', 'entering, or alighting' from the Crosley, we are then concerned only with the meaning of the word 'upon' as used in the context of Coverage 'C' governed by the above principles. Appellants state that "upon the automobile', as used here can only mean just what it says, that coverage existed when the injured person was above or on top of and being supported by the automobile.' (Line 23, Page 6, Op. Bf.)

We agree with appellant that there is no ambiguity in the term 'upon' as it is here employed and that it should be given the meaning ordinarily accepted in everyday speech and, this being true, respondent is not entitled to the benefit of the rule which gives the assured the benefit of an interpretation against the insurer where an ambiguity exists. We believe the proper rule is set forth in the case of New Amsterdam Casualty Co. v. Fromer, D.C.Mun.App., 75 A.2d 645 at page 646, 19 A.L.R.2d 509:

'Viewed in their context and applied to the instant facts we think the words 'while in or upon, entering or alighting' are plain and unambiguous, and that the trial court erred in holding otherwise. Hence the case must be tested and decided according to the ordinary meaning that common speech imports, and not by resort to the rule of liberal construction.' See also Ross v. Protective Ind. Co., 135 Conn. 150, 62 A.2d 340; Katz v. Ocean Acc. & Guarantee Corp., 202 Misc. 745, 112 N.Y.S.2d 737 at page 739.

The general rule is set forth in the case of National Automobile Ins. Co. v. Industrial Acc. Com., 11 Cal.2d 689, at page 691, 81 P.2d 926, 927, as follows:

'A contract of insurance, like any other contract, is to be construed so as to effectuate the intention of the parties. Of course, if any ambiguity exists in its terms it is to be interpreted against the insurer and in favor of the assured. But where, as here, the provisions of the policy are definite and certain there is no room for interpretation and the courts will not indulge in a forced construction in order to cast a liability upon the insurer which it has not assumed.' See also Perkins v. Fireman's Fund Indem. Co., 44 Cal.App.2d 427, 112 P.2d 670; Blackburn v. Home Life Insurance Co., 19 Cal.2d 226, 120 P.2d 31; Baine v. Continental Assurance Company, 21 Cal.2d 1, at page 5, 129 P.2d 396, 142 A.L.R. 1253.

The word 'upon' is defined in part by Webster's New International Dictionary, Second Edition, Unabridged, 1948, as follows:

'Upon--on:--in all its senses see on.'

And turning to the word 'on', one finds the following definition:

'On--The primary signification of on is position of contact with or against a supporting surface, or motion into or toward such position.

'1. Indicating position over...