Hendricks v. American Emp. Ins. Co.

• Decision Date: 16 June 1965
• Docket Number: No. 10398,10398
• Citation: Hendricks v. American Emp. Ins. Co., 176 So.2d 827 (La. App. 1965)
• Court: Court of Appeal of Louisiana
• Parties: Mrs. Rosalea Hart HENDRICKS, Plaintiff-Appellee, v. AMERICAN EMPLOYERS INSURANCE COMPANY, Defendant-Appellant.

Page 827

176 So.2d 827

Mrs. Rosalea Hart HENDRICKS, Plaintiff-Appellee, v. AMERICAN EMPLOYERS INSURANCE COMPANY, Defendant-Appellant.

No. 10398.

Court of Appeal of Louisiana, Second Circuit.

June 16, 1965.

Rehearing Denied July 29, 1965.

Theus, Grisham, Davis, Leigh & Brown, Monroe, for appellant.

McHenry, Snellings, Breard, Sartor & Shafto, Monroe, for appellee.

Before HARDY, AYRES and BOLIN, JJ.

BOLIN, Judge.

Mrs. Hendricks instituted this action to recover for the death of her husband under a policy of insurance issued by defendant company. The cause was submitted to the lower court on a joint stipulation, the depositions of two witnesses and various exhibits, including the policy sued upon, and judgment was rendered in favor of plaintiff from which defendant appeals.

The appellant in brief has agreed with the statement of the trial judge that there is no dispute as to the basic facts although there is disagreement between the parties as to whether the circumstances by which the insured met his death qualify and entitle the plaintiff to death benefits provided by the policy.

The joint stipulation of facts signed by the parties reflects that on the date of the accident plaintiff's deceased husband. Wilfred E. Hendricks, was employed as assistant manager for Panola Company, Ltd., which owned a number of large farms in the operation of which numerous people were employed. In addition to his monthly salary of $400 and as part of his compensation Hendricks was furnished a pickup truck for his use on the farm. Mr. Hendricks not only used the truck in his work but kept it at his home, had complete control over it, using it for his personal pleasure and business as well as going back and forth to his work, in going over the crops in the fields, over the pastures and in performing any of the duties incumbent upon a plantation manager.

The deposition of Mr. Guthrie, general manager of Panola, reflects that Mr. Hendricks never used this truck to haul products or produce of Panola for sale to customers, although Panola did have other trucks used for transporting farm products to market.

On October 3, 1963, Hendricks drove the aforementioned truck to a field of his employer for the purpose of supervising and assisting with the burning of grass from said field. He was accompanied and assisted by Joe Porter, the one witness to this accident. Shortly after the fire was started it spread rapidly and engulfed the truck.

From the deposition of Joe Porter, it appears that when Mr. Hendricks and Porter noticed the fire spreading toward the truck, which had been left parked nearby in a ditch traversing the field, they rushed to the vehicle and attempted to move it. Decedent entered the truck, started the motor, engaged the gears and discovered that it was stuck, the front end being down in the ditch causing the left rear wheel to be suspended and incapable of traction. Joe Porter tried to assist in moving the truck by pushing or shoving but their combined efforts were unsuccessful and they were forced to retreat while the fire engulfed the vehicle, passed over and left portions of the pickup and the contents smoldering and aflame, including an open bucket of diesel fuel, which was in the middle of the truck about a foot from the tail gate. Porter testified the tail gate was up or closed at the time.

Mr. Hendricks and his helper returned to the truck and together removed two tarpaulins from the back thereof. The decedent then reached into the vehicle, retrieved a jack handle and while standing on the ground against, or almost against the truck, sought to remove the burning container of fuel from the body of the pickup by inserting the jack handle into the bail of the bucket. While attempting to retrieve the container of fuel it was necessary for Hendricks to reach over the closed tail gate and to lean over the truck bed because of its raised position due to the front end being in a ditch. A portion of his body was therefore directly above the truck when he raised the bucket. The burning fuel slid down the angle of the short jack handle and inflicted the fatal burns, from which he died some three days later.

At the time of the accident Mr. Hendricks was the owner of a 'Family Automobile Combination Policy' issued by American Employers Insurance Company, defendant herein, which policy was in force and covered his private automobile. In addition to other coverages the policy contained an endorsement entitled 'Automobile Death and Specific Disability Benefits' whereby the insurer agreed to pay the sum of $10,000 to the spouse of the insured in the event of death of the insured resulting directly and independently of all other causes from bodily injury caused by accident, and sustained by the insured 'while in or upon or while entering into or alighting from, or from being struck by an automobile * * *' The endorsement contained the following exclusion:

'This insurance does not apply:

(a) to bodily injury or death sustained in the course of his occupation by any person while engaged (1) in duties incident to the operation, loading or unloading of, or as an assistant on, a public or livery conveyance or Commercial automobiles, or (2) in duties incident to the repair or servicing of automobiles; * * *' (Emphasis added.)

Appellant urges that the lower court erred in finding that the deceased was upon the truck when the flaming fuel oil spilled on him and in further finding the truck was not a commercial automobile.

Thus it is apparent the issues presently before this court are the correctness of the lower court's interpretation of two phrases: (1) While * * * upon * * * (2) Commercial automobiles, neither of which are defined in the policy.

It is conceded by all parties that the appellate courts of this state have never been called upon to define the word 'upon' as used in the policy and on only one occasion has the defining of 'commercial automobile' been necessary to a decision. Our responsibility therefore is great and in the solution of the problems presented we wish to acknowledge the aid furnished by able counsel for both litigants. Seldom have we had the opportunity of studying a case more thoroughly briefed than this one.

The contract before the court in this case is, of course, not an ordinary business contract, but rather it is one of insurance. While it is true that the law of contracts and conventional obligations is applicable to contracts of insurance in general, there are some vital differences. One such difference is that contracts of insurance are unilaterally prepared in the confection of which the insured has no part. It is for this reason that it has become well-settled law in the field of insurance that words and phrases employed in a contract of insurance are to be construed, interpreted and defined in their ordinary and popular sense, rather than in a technical, philosophical or limited sense; that such words and phrases are to be construed liberally in favor of the policyholder and that all ambiguities are likewise to be resolved in favor of the policyholder. See Louisiana Civil Code Articles 1945 et seq., particularly Article 1957 and cases cited.

Insurers may limit their liability where such limitation is clearly and expressly set forth in the contract of insurance. Such limitations or exclusions, however, must be free of ambiguity and sufficiently understandable to any given insured that it may be said that, in entering into the agreement containing such limitation, he understood and consented to such limitation. If the words or terms used in insurance policies are subject to more than one accepted meaning, then such words must be construed in the sense which is most favorable to the insured, unless such interpretation would lead to absurd results. See Louisiana Civil Code Articles 1957 and 1945(3).

Most insurance policies expressly define words or phrases which may be understood in different senses. Where a policy of insurance contains a definition of any word or phrase, this definition is controlling. Where, however, a particular word or phrase is not defined, the courts will endeavor by means of generally accepted legal techniques to ascertain the common and popular meaning of such word or phrase.

Adhering to the order of argument elected by defendant-appellant in its brief herein, the first item for consideration is the question of whether plaintiff's decedent was 'in or upon or * * * entering into or alighting from' the truck in question at the time he sustained the severe burns which resulted in his death.

We have examined all the authorities cited by the parties, including Webster's Dictionary, Words...