Field v. Southern Sur. Co. of New York

• Citation: 235 N.W. 571,211 Iowa 1239
• Decision Date: 17 March 1931
• Docket Number: 40771
• Parties: MARY R. FIELD, Appellant, v. SOUTHERN SURETY COMPANY OF NEW YORK, Appellee
• Court: United States State Supreme Court of Iowa

235 N.W. 571

211 Iowa 1239

MARY R. FIELD, Appellant, v. SOUTHERN SURETY COMPANY OF NEW YORK, Appellee

No. 40771

Supreme Court of Iowa, Des Moines

March 17, 1931

Appeal from Polk District Court.--FRANK S. SHANKLAND, Judge.

The plaintiff brings this action as beneficiary in an accident insurance policy issued by Southern Surety Company, an Iowa corporation, the predecessor of the defendant company, to recover the sum of $ 1,500 alleged to be due her by reason of the claimed accidental death of her husband, George A. Field to whom the policy was issued. At the close of plaintiff's evidence, the court directed a verdict in favor of the defendant company, and judgment was rendered accordingly. Plaintiff appeals.

Affirmed.

Judson E. Piper and Harold S. Thomas, for appellant.

Parrish Cohen, Guthrie & Watters and Stuart Ball for appellee.

WAGNER J. FAVILLE, C. J., and STEVENS, ALBERT, and GRIMM, JJ., concur.

OPINION

WAGNER, J.

The policy upon which suit is brought is denominated "Special Automobile Accident Policy." It insures the plaintiff's husband, George A. Field, against "the effects resulting exclusively of all other causes from bodily injury sustained by the insured during the life of this policy solely through external, violent and accidental means (excluding suicide while sane or insane, or any attempt thereat, while sane or insane) and which bodily injury is sustained by the insured while driving, riding in or on, demonstrating, adjusting or cranking an automobile, or in consequence of being struck, run down or run over by an automobile or caused by the burning or explosion of an automobile."

The policy also contains the following provision:

"Further, this insurance does not cover * * * injuries fatal or non-fatal, except drowning, of which there shall be no visible mark or contusion on exterior of the body at the point of injury, the body itself in case of death not to be deemed such."

The plaintiff, in her petition, alleges that:

"On or about January 8, 1930, while said policy of insurance was in force and effect, the insured, George A. Field, met his death at Des Moines, Iowa, as a result of violent, external and accidental means, as provided and defined in said policy of insurance."

This petition was attacked by the defendant by motion for more specific statement, asking that the plaintiff be required to state in what particular way referred to in the policy it is claimed that the insured met his death; and, upon the sustaining of said motion by the court, the plaintiff, by amendment, alleged that:

"The death of said George A. Field resulted from bodily injuries sustained by him while driving an automobile at the time and place as alleged in plaintiff's petition. And plaintiff further alleges that said death resulted from bodily injuries sustained by said assured, by reason of the explosion or explosions of an automobile."

At the close of plaintiff's evidence, the plaintiff filed an amendment, alleged to conform to the proof, and stating that:

"The deceased, George A. Field, came to his death in consequence of adjusting an automobile, as provided for and within the meaning of said policy of insurance."

The answer of the defendant company admits the issuance of the policy, and that the plaintiff is the beneficiary therein, and denies that the death of the insured was caused by any of the acts charged in the petition as amended; and further pleaded that there was no liability, because there was no visible mark or contusion on the exterior of the body at the place of injury.

It thus appears that the issues, as between the litigants, are clearly and distinctly stated. The policy, which is the contract between the insured and the first company, for whose obligations the defendant company is liable, insures the said George A. Field against the effects resulting, exclusively of all other causes, from bodily injury sustained by the insured through external, violent, and accidental means, "which bodily injury is sustained by the insured while driving * * * or adjusting * * * an automobile * * * or caused by the burning or explosion of an automobile." It will be noted that it is alleged by the plaintiff, and denied by the defendant, that the death resulted from bodily injuries sustained by the insured while driving an automobile. It is also alleged by the plaintiff, and denied by the defendant, that the death resulted from bodily injuries sustained by the insured while adjusting an automobile. It is further alleged by the plaintiff, and denied by the defendant, that the death of the insured resulted from bodily injuries sustained by reason of the explosion of an automobile. At the close of plaintiff's evidence, the court sustained a motion for a directed verdict in favor of the defendant, which presents the question as to whether or not there is evidence from which the jury could properly be allowed to find that the death of the insured resulted from injuries suffered by him while driving or adjusting an automobile, or in consequence of an explosion of an automobile.

Before adverting to the evidence in the case, we deem it advisable to state the rules of law applicable to the construction of insurance policies. The general rule is that a policy of insurance must be construed most favorably to the insured, but this rule applies only when there is a real ambiguity in the language of the policy. If the words used in the policy are plain and unambiguous, it is the duty of the court to give effect to such language in accordance with its plain and ordinary meaning, and not make a new contract for the parties by arbitrary judicial construction. See Walters v. Mutual Ben. H. & Acc. Assn., 208 Iowa 894, 224 N.W. 494; Hiatt v. Travelers Ins. Co., 197 Iowa 153, 197 N.W. 3; Jones v. Hawkeye C. M. Assn., 184 Iowa 1299, 168 N.W. 305; Riser v. Federal Life Ins. Co., 207 Iowa 1101, 224 N.W. 67. In Walters v. Mutual Ben. H. & Acc. Assn., 208 Iowa 894, 224 N.W. 494, we said:

"In placing an interpretation upon an insurance contract, it is well settled that, if its terms are ambiguous, that construction will be given it which is most favorable to the insured. On the other hand, this rule does not warrant an arbitrary judicial construction."

In said case, we quoted approvingly from Laventhal v. Fidelity & Cas. Co., 9 Cal.App. 275, 98 P. 1075, the following:

"The policy is but a contract, and, like all other contracts, it must be construed from the language used. When the terms are plain and unambiguous, it is the duty of courts to hold the parties to such contract. * * * It [the defendant company] made its insurance policy with these conditions, and evidently fixed its rate or premium in accordance with the risk it assumed. To these conditions the plaintiff gave his assent when he accepted the policy."

In Hiatt v. Travelers Ins. Co., 197 Iowa 153, 197 N.W. 3, we declared:

"If the language is, without violence, susceptible of two interpretations, that one which will sustain his claim and cover the loss must, in preference, be adopted over that construction which will prove fatal thereto. Such a rule, however, does not warrant an arbitrary judicial construction of the terms of the instrument, and a court is in duty bound to give effect to exceptions and limitations in a policy as they are written; and unless it may be said there is ambiguity in the words found in the policy, there is no occasion for the exercise of choice of interpretation. Jones v. Hawkeye C. M. Assn., 184 Iowa 1299, 168 N.W. 305. In the absence of some controlling statutory rule to the contrary, a court must give effect to the language of an insurance policy according to the plain and ordinary meaning of the terms which the parties have employed. Swanson v. Provident Ins. Co., 194 Iowa 7, 188 N.W. 677. It is not the function of a court to make a new contract of insurance by reason of supposed considerations of expediency or fairness. Some doubt or ambiguity must exist, in order to invoke a rule of construction or interpretation."

With the foregoing rules for our guidance, we now turn to the evidence in the case, to ascertain whether there is evidence from which the jury could properly be allowed to find that the death of the insured resulted from injuries suffered by him while driving or adjusting an automobile, or in consequence of an explosion of an automobile. If there be no such evidence, then the ruling of the court in sustaining defendant's motion for a directed verdict must be upheld. The insured was a lumber jobber, and, at the time of his death, on January 8, 1930, resided with his family at the southeast corner of Thirty-ninth Street and Ingersoll Avenue in the city of Des Moines. He was the owner of a Ford coupe, which he used in connection with his business. He was also the owner of a Paige sedan, which was not used in connection with the insured's business, but was used as a family car, principally by the daughter, in going back and forth from the residence to the high school. On Sunday evening, January 5th, Mr. Field and his family rode out to dinner in the Paige sedan, during which trip the tank was filled with ethyl gas. The weather was mild, and there was no alcohol or anti-freeze solution in the radiator, and the evidence tends to establish that the insured knew this condition. The residence of the insured faces west on Thirty-ninth Street, and there is a garage, large enough to hold only two cars, situated in the southeast corner of the lot. The next neighbor to the south, Callahan, has a garage which is situated on the northeast corner of his lot, and which is also large enough to contain only two cars. There is a driveway leading from the street to said two garages, the entrance being used in common by the two...