Green v. Farm Bureau Mut. Auto. Ins. Co.

• Decision Date: 09 March 1954
• Docket Number: No. 10620,10620
• Citation: 80 S.E.2d 424,139 W.Va. 475
• Court: West Virginia Supreme Court
• Parties: GREEN, v. FARM BUREAU MUT. AUTO. INS. CO.

Page 424

80 S.E.2d 424

139 W.Va. 475

GREEN, v. FARM BUREAU MUT. AUTO. INS. CO.

No. 10620.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 26, 1954.

Decided March 9, 1954.

Syllabus by the Court.

'The principle that a contract of insurance should be construed liberally in favor of the insured and strictly against the insurer does not apply when the language of such contract is unequivocal and unambiguous and clearly expresses the intention of the parties to such contract.' Point 4, Syllabus, Davis v. Combined Ins. Co., W.Va., 70 S.E.2d 814, 816.

Scherer, Bowers & File, W. H. File, Jr., Beckley, for plaintiff in error.

T. R. Wilson, Jr., Beckley, for defendant in error.

GIVEN, President.

Plaintiff, James Green, Prosecuted his action in the Circuit Court of Raleigh County against defendant, Farm Bureau Mutual Automobile Insurance Company, for recovery of damages resulting from an injury which plaintiff contends falls within 'Coverage G' of an insurance policy issued to plaintiff by defendant. The case was heard in the circuit court upon a stipulation of facts, and judgment was rendered in favor of plaintiff for five hundred dollars, on April 9, 1953. This Court granted a writ of error to that judgment.

Coverage G of the policy reads: '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.'

The stipulation reads: 'It is hereby agreed by and between the attorneys for the respective parties in the above styled action that the plaintiff was the holder of an insurance policy issued by the defendant, and while the said policy was in effect the said plaintiff was injured by the automobile described in the said policy under the following circumstances:

'The insured had a flat tire while in the course of a journey. He got out of the automobile, jacked up the rear of the car and removed the damaged tire. When he attempted to put the spare tire on the automobile he found that the jack did not raise the rear axle far enough off of the ground to permit this, and he reached for a block or a piece of timber to place under the rear axle. As he grasped the timber, the car fell sideways off of the jack and the wheel drum fell on his right arm causing injuries for which the medical bills were in excess of Five Hundred Dollars ($500), which is the limit provided for in the policy.'

The only question arising in the case is whether the injury to plaintiff occurred while he was 'in or upon, entering or alighting from the automobile'

Insurance contracts are to be construed or applied according to principles governing other contracts, except that where doubt or ambiguity exists the contract is to be construed liberally in favor of the insured. See Thompson v. State Automobile Mutual Insurance Co., 122 W.Va. 551, 11 S.E.2d 849; Booher v. Farmers' Mutual Fire Ass'n of West Virginia, 91 W.Va. 468, 113 S.E. 754; Tucker v. Colonial Fire Insurance Co., 58 W.Va. 30, 51 S.E. 86. The exception, however, the liberal construction rule, does not require, or even permit, the twisting or distorting of plain words or language. See Hanford v. Metropolitan Life Insurance Co., 131 W.Va. 227, 46 S.E.2d 777; Adkins v. Aetna Life Insurance Co., 130 W.Va. 362, 43 S.E.2d 372; Haddad v. John Hancock Mutual Life Insurance Co., 117 W.Va. 749, 188 S.E. 131; Iannarelli v. Kansas City Life Insurance Co., 114 W.Va. 88, 171 S.E. 748. 'Policies of insurance, lie other contracts, must receive a reasonable interpretation consonant with the apparent object and plain intent of the parties.' Point 3, Syllabus, Kanawha Investment Co. Hartford Steam Boiler Inspection & Insurance Co., 107 W.Va. 555, 149 S.E. 605.

We have been cited to no decision of this Court, and an independent search has revealed none, construing or applying the language 'while in or upon, entering or alighting from the automobile'. Decisions of courts of other jurisdictions may prove helpful. In Turner v. Fidelity & Casualty Co. of New York, 274 Mo. 260, 202 S.W. 1078, 1079, L.R.A.1918E, 381, the pertinent language in the policy was "while in or on a private conveyance". The injury for which damages were claimed occurred immediately after insured, with both feet on the ground, had started, by the use of a crank, the engine of the automobile in which he was traveling. Upon the starting of the engine the automobile instantly moved forward, killing the insured. The Court held that the insured was neither in nor on the automobile, within the plain language and meaning of the policy.

In Eynon v. Continental Life Insurance Co., 252 Mich. 279, 233 N.W. 228, the pertinent policy provision requried, to permit recovery, that the injury occur "By the wrecking or disablement" of a private automobile "in which the insured is riding or driving". While on a trip the insured stopped at a filling station and attempted to inflate a disabled tire, causing an explosion from which the injury resulted. Recovery was denied.

In New Amsterdam Casualty Co. v. Fromer, 75 A.2d 645, 646, 19 A.L.R.2d 509, the Municipal Court of Appeals for the District of Columbia denied recovery under a policy providing that recovery could be had only where the injury occurred while the insured was "in or upon, entering or alighting" from the automobile, where the injury for which damages were claimed resulted to the insured at a point about six feet to the rear of the automobile, at a time when the insured was going toward the automobile with the intention of 'entering' it for the purpose of continuing the trip. Other cases to the same general...