Guarantee Trust Life Ins. Co. of Chicago, Ill. v. Brown

• Decision Date: 30 July 1964
• Docket Number: 6 Div. 703
• Citation: 166 So.2d 786,277 Ala. 8
• Parties: GUARANTEE TRUST LIFE INSURANCE COMPANY OF CHICAGO, ILL. v. Jewell BROWN, pro ami.
• Court: Alabama Supreme Court

Page 786

166 So.2d 786

277 Ala. 8

GUARANTEE TRUST LIFE INSURANCE COMPANY OF CHICAGO, ILL. v. Jewell BROWN, pro ami.

6 Div. 703.

Supreme Court of Alabama.

July 30, 1964.

Jenkins & Cole, Birmingham, for appellant.

McDuffie & Holcombe, Tuscaloosa, for appellee.

GOODWYN, Justice.

Suit on a school child accident insurance policy.

The appeal is by defendant from a judgment (as reduced by the trial court from $2,500 to $1706.15 on motion for new trial) rendered on a jury verdict in favor of plaintiff and also from the judgment overruling defendant's motion for a new trial.

Three questions are presented: I. Whether defendant's demurrer to the complaint was properly overruled. II. Whether it was error to refuse defendant's requested affirmative charge based on a variance between the allegations and the proof. III. Whether the evidence was sufficient to establish coverage under the policy.

The complaint consists of one count, as follows:

'COUNT ONE: The plaintiff claims of the defendant the sum of, to-wit, Three Thousand ($3,000.00) Dollars, due on a policy of insurance whereby the defendant on, to-wit, the lst day of September, 1958, insured the plaintiff against loss by reason of hospital expenses, medical expenses, and doctor's bills due to injuries, necessarily or actually incurred; and the plaintiff incurred loss of hospital, medical and doctor's bills by reason of an accident, in which said accident she was seriously injured on, to-wit, April 23, 1959, and continued injured through, to-wit: December 22, 1959, in the amount or sum of, to-wit, Three Thousand ($3,000.00) Dollars, of which the defendant has had notice. Said policy of insurance is the property of and for the benefit of plaintiff.'

The defendant's demurrer to the complaint being overruled, it filed a plea of the general issue and for special pleas. The special pleas set out the several coverage provisions of the policy and allege that plaintiff, when injured, was not within any of them. In pertinent part, the policy provides coverage for students, including plaintiff, 'against loss of life, limb or sight, and loss due to hospital, nurse, and medical expense, resulting directly and independently of all other causes from accidental bodily injury, hereinafter referred to as 'Injury,' sustained while this policy is in force and while the Insured is:

'(1) Attending School during the hours and on the days when School is in session.

'(2) Traveling directly to or from the Insured's residence and the School for such sessions, coverage being effective not more than one hour before the time School beings and not more than one hour after the Insured is dismissed from School, and

'(3) Participating in and attending School-sponsored activities.'

The policy defines 'School-sponsored activities' as follows:

'15. 'School-sponsored activities' as herein used shall be construed to mean all School functions which are scheduled by the School on or off the School premises, including classes, and which are under the direct supervision of qualified School authorities, including School-sponsored and supervised travel to and from such activities.'

Plaintiff was a student at Montgomery High School, in Tuscaloosa County. On the day she was injured, there was a planned picnic to be held at a public lake, away from the school, by the Future Homemakers of America and the Future Farmers of America, sponsored by the Home Economics and Agricultural Departments of the school. A bus was to leave the school at 4:00 P.M. to take the participating students to the lake. Mr. John Sims, a teacher at the school, was one of the school authorities in charge of this activity.

Regular classes were dismissed at 3:00 P.M. Plaintiff was injured after that time, but prior to 4:00 P.M., on a public road away from the school. The circumstances leading up to and resulting in her injury may be stated as follows: After dismissal of classes, plaintiff and her sister, Joyce, went home by school bus, a distance of about 5 1/2 miles, left their books at home, caught the bus as it came back near their house and returned to the school. Joyce, the older of the girls, then borrowed an automobile from Mr. John Sims for the purpose of going to Brownsville, about 2 1/2 miles from the school, to get three girls who had gone home from school to change their clothes. Plaintiff accompanied Joyce on the trip and changed her clothes at her uncle's house. Five girls were picked up. On the way back to school, a stop was made to get ice cream and candy. Three of the girls rode in the car with Joyce and three, including plaintiff, rode on the front of the car. All of the girls were members of one of the clubs going on the picnic and were returning to the school grounds for that purpose. A short distance from the school grounds, a few minutes before 4:00 P.M., the three girls riding on the front of the car fell off, apparently as a result of the brakes being put on too hard or fast. The car ran over plaintiff, breaking her leg and pelvis bone. She was hospitalized and incurred hospital and medical expenses.

There is no question on this appeal as to the amount of damages, if plaintiff has coverage under the policy. Nor is there any question that the picnic was a 'School-sponsored activity,' as defined in the policy.

I and II

We see no reversible error in overruling the demurrer to the complaint. Even though the complaint might be insufficient in declaring on the particular policy here involved, we think it sufficiently states a cause of action to withstand the ground of demurrer here relied on, viz: The complaint 'does not state a cause of action against this defendant.' In effect, the allegations are that defendant insured plaintiff against loss by reason of hospital, medical, and doctor's expenses incurred by her due to injuries, however received; that she incurred such expenses due to an injury; that she is due payment for such expenses; and that the policy is her property and for her benefit. We think those allegations sufficiently 'state a cause of action against this defendant.' The fact that the complaint does not sufficiently allege liability under the policy...