Colonial Life & Acc. Ins. Co. v. Collins

• Decision Date: 26 January 1967
• Docket Number: 2 Div. 491
• Parties: COLONIAL LIFE AND ACCIDENT INSURANCE CO. v. Orene Sanders COLLINS, Executrix.
• Court: Alabama Supreme Court

Page 532

194 So.2d 532

280 Ala. 373

COLONIAL LIFE AND ACCIDENT INSURANCE CO. v. Orene Sanders COLLINS, Executrix.

2 Div. 491.

Supreme Court of Alabama.

Jan. 26, 1967.

J. H. Curry, Carrollton, and Dominick, Roberts & Davidson, Tuscaloosa, for appellant.

V. W. Elmore, Gordo, for appellee.

GOODWYN, Justice.

Suit on an insurance policy brought by the deceased insured's widow, as executrix of his will. There was verdict and judgment for plaintiff for $5,000, the amount of the policy. Defendant appeals from that judgment and also from the judgment overruling its motion for a new trial.

The pertinent provisions of the policy are as follows:

'PART A

COVERAGE: The Company will pay the benefits named in this Policy for loss resulting from bodily injuries sustained in the following manner;

'AUTOMOBILES

'1. While riding in or driving or by the burning or explosion of an automobile, station wagon, light or heavy duty truck, motor bus, taxicab, or ambulance, but excluding all other type motor driven vehicles.

'PART B

'INDEMNITIES FOR ACCIDENTAL DEATH

'If injuries as described in Part A are sustained by the Insured Employee and result within ninety (90) days from date of accident and directly and independently of all other causes in the loss named in this Part, the Company will pay to the beneficiary of such Employee the amount set opposite such loss which shall include amounts payable under succeeding parts:

'For Loss of Life ..... $5,000.00

'Payable $1,400.00 upon receipt of proof of death of Insured Employee and $100.00 on the first of each succeeding month for a period of thirty-six (36) months.

'Indemnity for loss of life is payable to the Insured Employee's beneficiary. All other indemnities are payable to the Insured Employee.'

The policy also provides:

'CHANGE OF BENEFICIARY:

BENEFICIARIES:

Any Insured Employee may designate a new beneficiary by filing at the Home Office of the Company a written request on forms satisfactory to the Company provided for this purpose. Such change shall become effective only upon receipt and approval of said request at the Home Office of the Company. If there be no beneficiary designated by the Employee or surviving at the death of the Employee, payment will be made to the first surviving class of the following classes of successive preference beneficiaries: The Employee's (a) widow or widower; (b) surviving children; (c) surviving parents; (d) surviving brothers and sisters; (e) executors or administrators of the Employee.'

The policy discloses no named beneficiary; nor does the evidence otherwise show the designation of a beneficiary by the insured. In the absence of a designated beneficiary, the insured's widow is the beneficiary.

The principal and decisive question before us is whether it was error to refuse defendant's requested affirmative charge with hypothesis. Defendant insists that there is no evidence to support a finding that the insured's injuries causing his death were sustained in a manner covered by the policy, specifically, 'while riding in or driving' a taxicab, which is the coverage relied on by plaintiff. Our conclusion is that the affirmative charge should have been given.

The insured was employed as a taxi driver in Aliceville. He was murdered on the night of February 9, 1964, or the early morning hours of February 10. He was last seen alive around 5 o'clock on the afternoon of February 9. At that time a Negro named James Hinton was seen sitting in insured's taxicab outside the taxi stand in Aliceville and shortly thereafter the insured was seen headed toward Pickensville on Highway 14 (Aliceville-Pickensville Highway) with a Negro in the car.

Insured's body was found in the early morning hours of February 10. His throat was cut and he had six or seven stab wounds in the chest, as well as other injuries. The body was found at the edge of a field next to a dirt road about 300 yards from Highway 14 and about 200 or 300 yards from the taxicab, which was on another dirt road.

Highway 14 runs generally in a northwesterly-southeasterly direction. The area where insured's body and the taxicab were found is to the south and west of Highway 14. A dirt road intersects Highway 14 from the south and then forks, with one fork going in an easterly direction and the other in a westerly direction. The taxicab was found on the east road and insured's body was found in an old field near the west road. The taxicab had been burned, thus destroying any evidence which might have been found in it. Although a search was made, no blood or human tracks were found around the taxicab.

There was a 'turning around place' for vehicles on the west road and insured's body was approximately 10 or 15 steps from this place. Blood was found near the turning around place and considerable blood was found on the ground under insured's head. A 'stick', about 2 or 3 feet long and 6 or 8 inches in diameter, with blood on it, was found in the turning around place, as were a fountain pen, a plastic pencil holder and the upper plate of a set of false teeth, identified as belonging to the insured. There was testimony that the 'stick' was a broken tree limb apparently taken from a fallen tree which was in the turning around place. There was no direct evidence as to where the insured was, nor what he was doing, when he received his injuries, nor the circumstances leading up to his injuries.

As already noted, the question is whether the jury's finding that the insured received his injuries 'while riding in or driving' the taxicab is supported by the evidence or a reasonable inference therefrom. We find no evidential support for such finding, and are impelled to the conclusion that the verdict rests on supposition, conjecture, speculation or guesswork and cannot stand.

It is a well-established principle that insurance contracts will be construed most strongly against the insurer. See: Trinity Universal Insurance Co., Dallas, Tex. v. Wills, 273 Ala. 648, 143 So.2d 846; McKee v. Exchange Insurance Association, 270 Ala. 518, 120 So.2d 690; Colonial Life & Accident Ins. Co. v. Shotts, 267 Ala. 525, 103 So.2d 181; New York Life Ins. Co. v. Torrance, 224 Ala. 614, 141 So. 547. But, where there is no ambiguity in the terms of the contract, it must be enforced as written, for a court has no authority to make a new contract for the parties. See: Woodall v. National Life & Accident Ins. Co., 269 Ala. 606, 114 So.2d 889; Chemstrand Corp. v. Maryland Casualty Co., 266 Ala. 626, 98 So.2d 1; McGifford v. Protective Life Ins. Co., 227 Ala. 588, 151 So. 349. The terms of this insurance contract are clear and unambiguous. The policy provides for payment of benefits if the insured sustains bodily injuries While riding in or driving a taxicab. It does not provide for payment if the insured is injured 'on the job,' or while 'acting within the line and scope of his employment,' or 'during working hours.' Nor does the policy contain any other language effectively broadening its coverage.

The burden was on plaintiff to prove that the insured's death resulted from injuries sustained in such manner as to bring him within the coverage of the policy. See: Life & Casualty Ins. Co. of Tenn. v. Garrett, 250 Ala. 521, 35 So.2d 109. She has not met this burden. We do not find a scintilla of evidence that the insured was injured 'while riding in or driving' the taxicab.

It could be that he did receive his injuries 'while riding in or driving' the taxicab, but there is not any evidence, nor a reasonable inference from evidence, which would support such a finding. It could be that insured's passenger attacked insured while insured was 'riding in or driving' the taxicab, but a finding to this effect necessarily would be the product of pure supposition, speculation, conjecture or guesswork. We do not find any evidence, or reasonable inference from evidence, that this occurred. The following circumstances tend to show that the injuries were received some distance away from the taxicab, viz.: There were no car tracks to indicate that the taxicab had ever been on the westerly road, near which insured's body was found; there is nothing in the evidence indicating that insured's body was pulled, pushed or dragged from the taxicab; found in the 'turning around place' were several personal items belonging to the insured, and also a broken limb on which there was some blood, but there is no evidence of any blood being on the ground in the 'turning around place'; a large amount of blood was found on the ground under insured's head, thus tending to indicate that the actual knifing took place at that point; and the body was found 200 or 300 yards from the burned taxicab. In short, we simply do not find any evidence indicating that the insured was anywhere near the taxicab when he received his injuries. It might be that the taxicab contained some evidence indicating that insured was attacked while in it, but there is no evidence to this effect. It would be pure supposition, speculation or conjecture to say that there must have been such evidence, but it was destroyed by burning the taxicab.

Our conclusion is that only on the basis of supposition, speculation, conjecture or guesswork can it be held, under the evidence presented, that plaintiff has met...