Importers' & Exporters' Insurance Company v. Jones

• Decision Date: 08 December 1924
• Docket Number: 35
• Citation: 266 S.W. 286,166 Ark. 370
• Parties: IMPORTERS' & EXPORTERS' INSURANCE COMPANY v. JONES
• Court: Arkansas Supreme Court

266 S.W. 286

166 Ark. 370

IMPORTERS' & EXPORTERS' INSURANCE COMPANY v. JONES

No. 35

Supreme Court of Arkansas

December 8, 1924

Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann Judge; affirmed.

Judgment affirmed.

Rogers Barber & Henry, for appellant.

A L. Rotenberry, for appellee.

OPINION

WOOD, J.

This is an action by the appellee against the appellant on an insurance policy to recover the sum of $ 295, alleged to be due on account of damage to appellee's automobile by the sinking of same in Black River. The cause was submitted to the court, sitting as a jury, on the following agreed statement of facts:

"That the plaintiff, Claudius Jones, on November 12, 1922, was the owner of a certain Hupmobile coupe, upon which there was in full force and effect a certain insurance policy issued by the defendant herein, covering loss or damage by fire, theft and transportation to the body, machinery and equipment of said car.

"That the said Claudius Jones and C. C. Larimer drove said car on to a ferryboat at Point Ferry, about 200 yards above Black River, where it goes into White River, about eight miles north of Newport, Arkansas, and were transported on said boat across said river. When the boat arrived at the other side of the river, the ferryman threw down the apron of said boat. The embankment was steep, and it was also raining. Plaintiff and the said Larimer were in the said automobile with the door and windows closed. After the boat was landed and the apron to the boat let down by the ferryman, plaintiff, believing that all was safe, started to drive off the said ferryboat. When the front wheels of said automobile landed on the bank, the rear wheels pushed the boat back, which let the said automobile back off into the water, which was some fifteen feet deep."

It was agreed that the appellee had sustained damages by reason of the accident in the sum of $ 295.

Attached to the agreed statement was a copy of the insurance policy which is headed: "Customer's Copy-- Non-Valued Fire, Theft, and Transportation Form." On the back of the policy is plainly printed: "Automobile Certificate--Non-Valued Fire, Theft and Transportation Form." In the body of the policy the automobile "is insured against direct loss or damage by fire, theft and transportation to the body, machinery and equipment, subject to all conditions, stipulations, provisions, exclusions and warranties contained and set forth in said policy, or set forth herein which are a part of said policy." On the back of the policy, among many other provisions, is the following:

"Perils insured against--(a) fire, arising from any cause whatsoever; and lightning.

"(b) While being transported in any conveyance by land or water, the stranding, sinking, collision, burning or derailment of such conveyance, including general average and salvage charges for which the insured is legally liable.

"(c) Theft, robbery, or pilferage, except by any person or persons in the assured's household," etc.

The court entered a judgment upon the above facts in favor of the appellee in the sum of $ 295, and for penalty and attorney's fee, from which judgment is this appeal.

The only question for our decision is whether the damages sustained by the appellee were covered by the policy. If appellant is liable at all, its liability must be predicated upon subdivision "b," supra, of the policy. The appellant contends that it is not liable under this provision because, first, the car, at the time of the accident, was not being transported in any conveyance by land or water, and second, because if the car was being transported in a conveyance, the clause of the policy did not cover loss or damage by the "sinking" of the car for the reason that there was no "stranding," "sinking," "collision," "burning" or "derailment" of the conveyance in which the car was being transported. To sustain this contention, appellant relies upon the case of Wample v. British Empire Underwriters' Agency, 54 Dom. L. R. 657, in which the Supreme Court of Canada had under review a policy containing precisely similar provisions to those set forth above. In construing these provisions, the court, among other things, said: "And the risk that the policy assumes is the stranding, burning, sinking, collision and derailment of the conveyance containing the motor car while being transported by land or water. It is not the stranding, sinking, etc., of the motor car itself which is covered, but of the conveyance. And any damage to the motor car resulting from such accident to the conveyance would be covered by the policy. The opening words of the clause are to be interpreted solely as marking the occasion upon which any specified accident to the conveyance will entitle the insured to recover."

We cannot concur in this construction of the contract. To our minds it is entirely too narrow and superficial, and does not carry out the intention of the parties to the contract of insurance. In arriving at the intention of the parties to the contract of insurance, the language of the clause in subdivision "b" in the policy must be considered in connection, not only with its immediate context, but with all the other language of the policy. It must be interpreted in the light of the situation of the parties and the subject-matter of the contract; and if the language used by the parties is of doubtful meaning and susceptible of two constructions, the one favorable to the insured, and the other to the insurer, that construction must be given which is most unfavorable to the party framing the contract and using the language to express the intention of the parties.

These are familiar canons for the construing of all contracts, and especially insurance contracts. Wood v. Kelsey, 90 Ark. 272, 119 S.W. 258; Fort Smith Light & Traction Co. v....