Connolly v. Standard Cas. Co.

• Court: South Dakota Supreme Court
• Writing for the Court: ROBERTS; RUDOLPH
• Citation: Connolly v. Standard Cas. Co., 73 NW2d 119, 76 S.D. 95 (S.D. 1955)
• Decision Date: 18 November 1955
• Docket Number: No. 9483,9483
• Parties: John L. CONNOLLY, C. H. Connolly, and Michael Connolly, Plaintiffs and Respondents, v. STANDARD CASUALTY COMPANY, a Corporation, Defendant and Appellant.

Page 119

73 N.W.2d 119

76 S.D. 95

John L. CONNOLLY, C. H. Connolly, and Michael Connolly Plaintiffs and Respondents, v. STANDARD CASUALTY COMPANY, a Corporation, Defendant and Appellant.

No. 9483.

Supreme Court of South Dakota.

Nov. 18, 1955.

Rehearing Denied Dec. 19, 1955.

Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and appellant.

A. J. Beck, Elk Point, for plaintiffs and respondents.

ROBERTS, Judge.

Plaintiffs brought this action against the Standard Casualty Company on a public liability policy for indemnification on account of the satisfaction of a judgment obtained against them in a personal injury action. From a judgment for plaintiffs entered May 24, 1954, defendant appeals.

The record shows that on November 5, 1948, on employee of the plaintiffs while operating a pickup truck became involved with a motor ambulance driven by one L. W. Anderson. An action was brought by Anderson against C. H. Connolly and Michael Connolly and their employee Leo Lanning. The case was brought to this court on appeal and the judgment in favor of plaintiff Anderson was affirmed. Anderson v. Lanning, 74 S.D. 161, 50 N.W.2d 57.

Defendant insurance company issued to 'John L., C. H., & Michael J. Connolly d/b/a C. H. Connolly' a policy which is designated as a 'Comprehensive Farm Liability Policy'. Under its terms the insurer agreed 'to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of * * * bodily injury * * * sustained by any person' and 'injury to or destruction of property'. The policy contains an exclusionary clause providing that these coverages shall not apply 'to the ownership, maintenance or use, including loading and unloading of (1) automobiles while away from the premises or the ways immediately adjoining * * *'. An 'Automobile' is defined in the policy as a 'land motor vehicle, trailer or semitrailer other than farm tractors and trailers not subject to motor vehicle registration and farm implements while such farm tractors, trailers and implements are used in connection with a farm'. The word 'premises' under terms of the policy 'means (1) the farm premises described in the declarations * * * and (3) premises in which an insured is temporarily residing, if not owned by an insured'. There is included in the description of the farm premises in the declarations made a part of the policy 320 acres in Section 33, Township 91, Range 49, Union County, and a total of 480 acres in Sections 22, 27 and 34.

The defendant disclaims liability on the ground that the policy did not cover the place of the accident. For better understanding of the facts, a photostatic copy of a plat of Section 33 used in evidence, Exhibit 2, is here inserted.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The employee of the plaintiffs driving the pickup truck proceeded from the farm buildings in a northwesterly direction on U.S. Highway 77 and turning left at the intersection to drive south on the highway along the west line of Section 33 collided with the ambulance.

The pickup truck which was involved in the accident bearing South Dakota registration plates was an automobile within the terms of the policy and not a farm implement. So far as applicable to insured's automobiles, the obligation to indemnify for accidents caused thereby is limited to those occurring on the farm premises or 'the ways immediately adjoining'. The accident in question having occurred off such premises, the question presented is whether the accident and resulting injuries which became the basis for the claim against the defendant occurred on a way 'immediately adjoining' the premises.

The word 'adjoin' as defined in Webster's International Dictionary, 2d Ed., means 'to lie contiguous to'; 'to be in contact with'; 'to abut upon'. It is sometimes inaccurately used to mean lying in proximity to or near. But when coupled with the word 'immediately' the word is necessarily used in its most restrictive sense. To hold that the policy covered all accidents caused by insured's automobiles while used in connection with the farm on all highways necessarily traveled in going from one part of the farm to another would give to it a meaning clearly not intended. If the policy had intended to include all such highways there was no occasion for using the qualifying word 'immediately' in conjunction with the word 'adjoining'. Long v. London & Lancashire Indemnity Co. of America, 6 Cir., 119 F.2d 628. Coverage under the policy we conclude extended to those protions of the public highways abutting or touching the farm premises. Charles Wolff Packing Co. v. Travelers' Ins. Co., 94 Kan. 630, 146 P. 1175; City of Lawrenceburg v. Maryland Casualty Co., 16 Tenn.App. 238, 64 S.W.2d 69; Long v. London & Lancashire Indemnity Co. of America, supra; Tudor v. Chicago & S. S. Rapid Transit R. Co., 154 Ill. 129, 39 N.E. 136; United States v. Great American Indemnity Co. of New York, 9 Cir., 214 F.2d 17.

The court found specifically that plaintiffs in their farming operations have for the past forty years mowed and taken off the hay on the railroad right of way between the railroad tracks and the highway in Section 33 extending southeasterly from the highway intersection where the accident occurred to the land owned by the plaintiffs and beyond for an undisclosed distance and that the premises in Section 33 occupied and used by plaintiffs including such hay land does not exceed 320 acres.

Plaintiffs contend that in the absence of a clear limitation of coverage to premises owned or under the control of the plaintiffs the coverage should not be so limited and because this is an appropriate case for the application of the familiar rule that ambiguous terms of a policy should be construed most strongly against the insurer where they are reasonably susceptible of such a construction the coverage should be construed to apply to the farming operations of plaintiffs on the railroad right of way. We cannot, however, by construction do violence to the language of the policy and read something into it that is not there. It is true that the land owned by or under the control of the plaintiffs in Section 33 and the area on the railroad right of way on which plaintiffs mowed hay did not exceed the 320 acres named in the declarations in the policy. 'Farm premises' is not an apt expression to include an area devoted principally to the operation of a railroad and from which without lease or similar right hay is cut and removed. The term 'farm' or 'farm premises' denotes a tract of land used wholly or principally for agricultural purposes and under one control. 35 C.J.S., Farm, pp. 746-749; State Industrial Accident Commission v. Eggiman, 172 Or. 19, 139 P.2d 565; Williams v. Chicago & N. W. Ry. Co., 228 Ill. 593, 81 N.E. 1133. The testimony of plaintiff Michael Connolly warrants the belief that he did not consider the tract in question as a part of the farm premises. The following is taken from the testimony given by him upon cross-examination: 'Q. But in your farm operation, you were using the entire Southwest Quarter of Section 33? A. Minus the railroad right-of-way. Q. Minus the railroad right-of-way which is in the extreme northeast corner of that (quarter) section? A. That's right.' We conclude that the situs of the accident was not on a way immediately adjoining the premises of the plaintiffs and hence there was no coverage.

It is asserted that plaintiffs in reliance on the designation 'Comprehensive Farm Liability Policy' printed on the outside and at the top of the contract were led to believe that they had coverage on all their farming operations. While it may be proper in the case of...