English v. Old Am. Ins. Co., 52986

• Decision Date: 11 March 1968
• Docket Number: No. 52986,No. 1,52986,1
• Citation: 426 S.W.2d 33
• Parties: Marjorie (West) ENGLISH, Appellant, v. OLD AMERICAN INSURANCE COMPANY, a Corporation, Respondent
• Court: Missouri Supreme Court

Page 33

426 S.W.2d 33

Marjorie (West) ENGLISH, Appellant, v. OLD AMERICAN INSURANCE COMPANY, a Corporation, Respondent.

No. 52986.

Supreme Court of Missouri, Division No. 1.

March 11, 1968.

As Modified on Court's Own Motion and Rehearing Denied April 10, 1968.

George L. Gisler, Kansas City, for appellant; Gisler & Howell, Kansas City, of counsel.

Martin J. Purcell, Morrison, Hecker, Cozad, Morrison & Curtis, Kansas City, for respondent.

CHARLES SHANGLER, Special Judge.

On September 25, 1962, defendant Old American Insurance Company insured plaintiff's husband, Albert West, against certain accidental injuries or death suffered while riding in a 'private passenger automobile'. Superimposed upon the face of the insurance policy, in block letters, is the legend: 'THIS IS A LIMITED POLICY READ IT CAREFULLY.' On September 14, 1963, Mr. West, returning home from work in his 1962 Chevrolet pickup, collided with a tractor-trailer, was injured and died of those injuries on October 2, 1963.

In due course, the plaintiff beneficiary made claim for payment and was refused. Defendant refused payment and defended the action brought on the policy on the ground that the half ton pickup was not a 'private passenger automobile' within the context of the policy. That term was defined in the policy as follows:

'* * * As used in this Policy, automobile means a land vehicle of the type commonly and ordinarily known and referred to as an 'automobile', and private passenger automobile means a private automobile designed primarily for transporting persons.'

A jury returned a verdict in favor of plaintiff in the amount of $15,000 plus interest of $750. The trial court sustained defendant's after trial Motion for Judgment and entered judgment for defendant. Although defendant asserted four grounds in its Motion for Judgment, actually but two points are raised in it. Firstly, that the terms of the insurance contract between Mr. West and defendant were unambiguous, excluding, as a matter of law, the half ton pickup from its definition of 'private passenger automobile'. Secondly, that the plaintiff failed to make a submissible case.

Plaintiff, on the other hand, offers five distinct grounds of error. As we will detail, they, too, can be reduced to merely two grounds, the others being either redundant or tangential. As asserted, however, the five are rendered verbatim:

'1. The design, construction and use of one half ton pick ups is (sic) primarily for passenger transportation.

'2. The words 'designed' and 'primarily' as used in the policy are ambiguous and that ambiguity should be resolved in favor of the insured. 'Designed primarily' means the principal use of the vehicle made by the insured.

'3. The cases uniformily hold that a pick up is a 'private passenger automobile'.

'4. Where a vehicle has more than one purpose or design it is a question of fact for the jury to determine which use is 'primary'. The verdict of the jury in this case, which was supported by overwhelming evidence should be restored.

'5. The automobile manufacturers themselves recognize the pick up to be designed primarily for transporting persons.'

The evidence presented at the trial was brief and we shall review it when apposite to a point under discussion. Counsel have assiduously briefed the questions involved. There appears to be a dearth of appellate decisions, both domestic and foreign, on the points involved and we are satisfied they have all been presented for our consideration. Curiously, both parties cite the same authorities, in some instances, to support their respective positions.

As we have observed, plaintiff's five contentions of error can be fairly reduced to these two: 1. The words 'designed primarily' as used in the policy are ambiguous, and such ambiguity should be resolved in favor of plaintiff. 2. Where a vehicle has more than one purpose or design, it is a question of fact to be determined by a jury as to which use is primary. In this determination, the principal use made of the vehicle by the insured is controlling.

All agree plaintiff is entitled to recover if the 1962 Chevrolet half ton pickup deceased was occupying at the time of the collision was a 'private passenger automobile' defined in the policy further as a 'private automobile designed primarily for transporting persons'. Are these policy terms ambiguous as they relate to that half ton pickup? If so, we are required to construe the insurance contract strictly against the insurer and liberally in favor of the insured. 44 C.J.S. Insurance § 297, page 1166; Hoover v. National Casualty Co., 236 Mo.App. 1093, 162 S.W.2d 363. The language of a contract is ambiguous when there is doubt or uncertainty as to its meaning and it is fairly susceptible of two interpretations. 44 C.J.S. Insurance, loc. cit.; Blashfield, Automobile Law and Practice, Volume 7, page 212; Union Electric Co. v. Pacific Indemnity Co., Mo.App., 422 S.W.2d 87. 'Ambiguity (in a policy) arises when there is duplicity, indistinctness or uncertainty of meaning (of words used in a policy.)' Swaringin v. Allstate Insurance Company, Mo.App., 399 S.W.2d 131, at 133. Or, as defendant contends, does the policy definition, 'Private automobile designed primarily for transporting persons' dispel any ambiguity which otherwise might have existed?

The term 'private passenger automobile', without further policy definition, has been held to be ambiguous when applied to a half ton pickup in Detmer v. United Security Insurance Company, Mo.App., 309 S.W.2d 713. That case involved a claim for property damage to a 1954 half ton Ford pickup. The insurance policy afforded coverage to the insured while operating a non-owned 'private passenger automobile'; that phrase was not further defined in the policy. Appellant contended that vehicle, as a matter of law, did not come within the meaning of 'private passenger automobile'. No evidence was offered as to the construction of the pickup or the use made of it. Relying on the leading case of Aetna Life Ins. Co. of Hartford, Conn. v. Bidwell, 192 Tenn. 627, 241 S.W.2d 595, the court, in effect, judicially noted that 'such half-ton pickups are adapted for and commonly used in part as passenger cars' (Detmer v. United Security Insurance Company, Mo.App., 309 S.W.2d 715). It also reviewed numerous decisions from other jurisdictions, most of which have been briefed by counsel on this appeal, and concluded, at 309 S.W.2d 717:

'It is our opinion * * * that in each case the ultimate question to be determined is one of fact--that is, was the automobile within the meaning of the policy, a 'private passenger automobile'? Was it a motor vehicle designed and commonly used for and was it actually being used for transporting passengers? In order to determine this ultimate question, evidence as to the construction of the vehicle, how such vehicle was commonly used, and how it was being used is competent and material. Probably in some instances the evidence would be so overwhelming, as with a tractor-trailer or a sports convertible, as to make determination of that fact a question of law. * * *'

In Fidelity and Casualty Co. of N.Y. v. Martin, C.A. 9, 66 F.2d 438, decided in 1933, the policy afforded coverage to the insured 'while riding in * * * or on, driving * * * a private passenger automobile'. It excluded coverage 'while riding or driving in or on any motorcycle, automobile truck'. None of the terms was further defined. At the time of the occurrence, the insured was on a fishing trip, driving a 'Ford Roadster Pick-up closed cab' purchased in 1929. It was equipped with a removable box at its rear, 54 inches by 43 inches in dimension. The vehicle actually was used both for the cartage of light burdens and for pleasure purposes. The question presented was whether the pickup was a 'private passenger automobile' within the meaning of the policy. The court concluded, at pages 440--441:

'We see no escape from the proposition that under the evidence the question was one of fact. It the car had been a Ford roadster equipped to carry passengers only, or a heavy truck solely adapted to carry freight, * * * no doubt the question of the applicability of the policy of insurance * * * would be a question of law, but, where the automobile is of the character disclosed by the evidence, its classification is one of fact to be determined by the court or jury, as the case may be.'

The court also held that the use made of the vehicle by the insured was material to such determination.

In Poncino v. Sierra Nevada Life & Casualty Co., 104 Cal.App. 671, 286 P. 729, (1933), defendant undertook to insure the life of Eugeno Poncino against death resulting from accident occasioned by 'the wrecking of any private passenger motor-driven car' (not further defined) in which he was riding or driving. The vehicle in question was equipped with a delivery wagon body and the issue was whether it was a 'private passenger motor-driven car' within the meaning of the policy. The court held it was a jury issue in view of the evidence as to the use to which it had been put. It observed: '* * * the manner in which a vehicle is used, as well as its construction, is an important factor in determining its character'. See also, Smith v. Maryland Casualty Co., 63 N.D. 99, 246 N.W. 451.

On the other hand, in La Fon v. Continental Casualty Co., 241 Mo.App. 802, 259 S.W.2d 425, it was held as a matter of law that a 1950 Studebaker pickup, being used by a dragline operator while returning to his home from work, was not a 'private pleasure type automobile'. The court found that policy provision unambiguous as it related to the described vehicle. That insuring clause, however, is so significantly different from the one under consideration as to effectively eliminate that decision as a precedent for us. Compare: Senn's Adm'x v. Michigan Mutual Liability Co. (Ky. Court of Appeals, 1954), 267 S.W.2d 526.

Another common source of ambiguity in such...