Hill v. Ocean Acc. & Guarantee Corp., 6 Div. 787

• Decision Date: 20 June 1935
• Docket Number: 6 Div. 787
• Citation: 162 So. 376,230 Ala. 590
• Court: Alabama Supreme Court
• Parties: HILL v. OCEAN ACCIDENT & GUARANTEE CORPORATION.

162 So. 376

230 Ala. 590

HILL v. OCEAN ACCIDENT & GUARANTEE CORPORATION.

6 Div. 787

Supreme Court of Alabama

June 20, 1935

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action by Will Hill against the Ocean Accident & Guarantee Corporation. From a judgment of nonsuit, plaintiff appeals.

Transferred from Court of Appeals under section 7326, Code 1923.

Affirmed.

Clifford Emond and Whit Windham, both of Birmingham, for appellant.

J.P Mudd, of Birmingham, for appellee.

GARDNER Justice.

Plaintiff recovered of one A.E. Cumby a judgment for damages arising out of a collision with a truck, owned by Wilson & Co., and operated at the time by said Cumby, an employee of said Wilson & Co. There was in force at the time a liability insurance policy issued by defendant to Wilson & Co., and plaintiff sues thereon; his right to so prosecute the suit resting upon section E of the policy.

It appears from the pleadings (details omitted) that, though Cumby at the time of the collision was in the permissive use of the truck belonging to Wilson & Co., yet he was making use of it for his own purpose--going for coal for his home consumption--and in no manner connected with the business of Wilson & Co.

Paragraph 7 of the policy provides coverage for "additional assured," and it is plaintiff's insistence this provision includes Cumby, the operator of the truck particularly in view of the definition of the word "assured" found in paragraph A, to include additional assured as well as the named insured, and the definition of "named insured" as having application only to the assured named as such in the "declarations."

Defendant insists the policy discloses a distinction as to the character of vehicle in use, and that while as to passenger cars there may be some force in plaintiff's contention yet as to the operation of truck type vehicles there can be no liability, under the express terms of the policy, unless the same is used "in direct connection with the assured's business occupation as stated in Declaration 3" of the policy, wherein is the statement: "The named assured is a corporation, and the named assured's occupation or business is various--packing principally."

The trial court accepted defendant's theory, and we think correctly so.

The rule is familiar, as contended by plaintiff (citing New Brunswick Fire Ins. Co. v. Nichols, 210 Ala. 63, 97 So 82; Mutual Life Ins. Co. v. Lovejoy, 201 Ala. 337, 78 So. 299, L.R.A. 1918D, 860; Southern Ins. Co. v. Wilson, 214 Ala. 373, 108 So. 5; Illinois Automobile Ins. Exch. v. Southern Motor Sales Co., 207 Ala. 265, 92 So. 429, 24 A.L.R. 734; Travelers' Ins. Co. v. Plaster, 210 Ala. 607; 98 So. 909; Dickinson v. Maryland Casualty Co., 101 Conn. 369, 125 A. 866, 41 A.L.R. 500; St. Paul Fire & Marine Ins. Co. v. American Compounding Co., 211 Ala. 593, 100 So. 904, 35 A.L.R. 1018), that doubtful language in insurance policies is to be construed most favorably to the insured; but this rule, as has been frequently stated, is not to be carried to the extent of construing such a contract contrary to the manifest intention of the parties, for such intention is the "pole star" of all rules of construction. New York Life Ins. Co. v. Crumpton (Ala.Sup.) 160 So. 332; Home Loan & Finance Co. v. Fireman's Fund Ins. Co., 221 Ala. 529, 129 So. 470; Life & Casualty Ins. Co. v. Bottoms, 225 Ala. 382, 143 So. 574; McGifford v. Protective Life Ins. Co., 227 Ala. 588, 151 So. 349; Nettles v. Lichtman, 228 Ala. 52, 152 So. 450. For, as said in Home Loan & Finance Co. v. Fireman's Fund Ins. Co., supra: "True intent governs insurance contracts, as well as others. *** While doubtful terms in insurance contract are construed in insured's favor, no strained construction should be indulged to raise doubt."

The policy contains the provision that no insurance is granted thereby "while any motor vehicle is being used for purposes other than those specified in the Declarations." Section B of the declarations contains the following: "Truck type and commercial delivery motor vehicles (if any) used for transportation or delivery of materials or merchandise in direct connection with the assured's business occupation as stated in declaration 3." Referring to declaration 3, we find: "The named assured is a corporation, and the named assured's occupation or business is various, packing principally." And in declarations 1 and 2, just preceding, is the following: "1. The named assured Wilson and Company and/or its subsidiary companies. 2. Address of assured No. 41st Street and Ashland Avenue, City *** of Chicago *** State of Illinois." While in section 3 of declarations are the words "assured's business occupation," rather than the "named assured," yet it is clear beyond controversy that the assured referred to was Wilson & Co., for the words are followed by "as stated in Declaration 3," and in declaration 3 is found the designation of the "named assured's business *** various, packing principally."

The "omnibus coverage" clause, under which alone insurance would be held applicable to Cumby, is limited by the above-noted provisions as to truck type vehicles, that there shall be no insurance granted relative thereto, unless being used in direct connection with the business of the named insured.

The case more nearly in point, to which our attention has been directed, is that of Johnston v. New Amsterdam Casualty Co., 200 N.C. 763, 158 S.E. 473, construing policy provisions very similar, and which fully sustains this conclusion. The definitions of "assured" and "named assured" found in ...