Independence Ins. Co. v. Jeffries' Adm'R.

• Decision Date: 15 June 1943
• Citation: 294 Ky. 690
• Parties: Independence Ins. Co. v. Jeffries' Adm'r.
• Court: United States State Supreme Court — District of Kentucky

294 Ky. 690

Independence Ins. Co. v. Jeffries' Adm'r.

Court of Appeals of Kentucky.

June 15, 1943.

1. Insurance. — Terms and provisions of insurance policies are construed most strongly against insurer.

2. Insurance. — Insurer, in order to limit liability on policy, must employ clear and unambiguous language.

3. Insurance. — Under accident policy insuring against accidental death sustained by being accidentally thrown from wrecked or disabled automobile or vehicle "in" which insured is riding, indemnity was payable where insured was thrown from an automobile and killed while riding on running board outside burning automobile driven by insured's son, since insured was riding "in" the automobile within the meaning of the policy.

4. Insurance. — In action on accident policy insuring against accidental death sustained by insured being accidentally thrown from wrecked or disabled automobile, evidence established that insured, who was riding on running board of burning automobile driven by insured's son, was thrown from the automobile and did not voluntarily jump therefrom.

Appeal from Oldham Circuit Court.

J. Ballard Clark and John Marshall, Jr., for appellant.

J.A. Hall, Jr., for appellee.

Before Charles C. Marshall, Judge.

OPINION OF THE COURT BY JUDGE REES.

Affirming.

Paul D. Jeffries was killed in an automobile accident in November, 1941. At the time of his death an accident insurance policy issued to him November 4, 1927, by the Inter-Southern Life Insurance Company was in force. The Independence Insurance Company had taken over the policy and assumed liability thereon. The policy was issued to Jeffries through and for a newspaper, one of the conditions being that he should continue as a regular home served reader of the newspaper by authorized carrier or mail during the life of the policy, and insured him against accidental death or disability sustained "by the wrecking or disablement of any automobile or motor Driven Car (Motorcycles and Railway Cars excepted) or Horse-Drawn Vehicle not Plying for Hire in which the insured is riding or driving or by being accidentally thrown from wrecked or disabled automobile or vehicle."

The insured was employed by Warren Bros. Road Construction Company on U.S. Highway 42 in Jefferson county. Two additional travel lanes were being constructed on the north side of the highway. The concrete work had been completed, but the two lanes had not been opened to the traveling public. One of the insured's duties was to place flares along the new concrete lanes for the purpose of warning automobile drivers on the road, and in performing this duty he used his automobile. The flares were round metal pots filled with oil and equipped with wicks, and were carried in the trunk at the rear of the automobile. On the day the accident happened the insured's 16-year old son, Warren Jeffries, assisted him and drove the car while the insured placed the flares along the road. When they had almost finished placing the flares on the road it was discovered that smoke and flames were coming from the rear of the car. They tried to extinguish the flames but were unable to do so. The car was only a short distance from the supply station where water was available, and they decided to drive to the station or camp and try to extinguish the fire there. Warren Jeffries drove the car, which was a Chevrolet sedan, and insured stood on the running board. While traveling to the supply station flames came up from behind the seat of the car and Warren Jeffries, the driver, was burned about his head and neck. The insured called to his son not to hit a car parked on the side of the road, and the son testified that he applied the brakes, one of the rear wheels grabbed, and the car swerved abruptly to the left out of control. As the car swerved the insured fell to the concrete road, struck the bumper of the parked car, and sustained injuries from which he died. Warren Jeffries jumped from the car which continued down the road, crossed to the left, ran into the ditch and burned. The insurer introduced no evidence at the trial and, after its motion for a directed verdict in its favor made at the conclusion of plaintiff's evidence had been overruled, the case was submitted to the court and judgment was rendered in favor of the plaintiff for $3,750 the face amount of the policy. The defendant has appealed and insists that the accident was not covered by the policy, and that judgment should have gone in its favor.

It is argued that the decedent was not riding in the automobile as provided by the policy, and the fact that he was riding on the running board outside of the car does not bring him within the terms of the policy. It is conceded that there is no Kentucky case directly in point and we find no decisions of this court that involve the exact question before us, but appellant cites and relies upon a number of cases from foreign jurisdictions which it is claimed support its contention. An examination of these cases discloses, however, that none of them is on all fours with the case before us. Several of them deal with a policy provision similar to the provision found in the policy carried by the decedent, but where the accident occurred when the insured was riding on a motorcycle. The cases holding that such a provision in a policy does not cover accidents suffered by policyholders while riding on a motorcycle assign as the reason for the decision the fact that a motorcycle is not known as a "motor-driven car" in the general and popular sense of that term although in some of the cases the use of the word "in" instead of "on" in the policy is stressed. In Perry v. North American Accident Insurance Company, 104 N.J. L. 117, 138 A. 894, cited by appellant, the court dealt with a case where the insured was killed by being thrown from a motorcycle on which he was riding. Although saying that the use of the preposition "in," in the clause of the policy reading "any private horse-drawn vehicle, or motor-driven car in which insured is riding or driving," was significant, the court based its decision that a motorcycle was excluded from the provisions of the policy on the ground that the use of the phrase "motor-driven car" immediately after the phrase "horse-drawn vehicle" indicated a purpose to exclude a motorcycle which is a vehicle and not a car. There is authority, however, for the view that a motorcycle is within the contemplation of a provision of an accident policy covering loss of life caused by the wrecking or disablement of a "motor-driven car" in which the insured was riding. Annotation 70 A.L.R. 1253. Other cases cited by appellant dealt with the question whether the insured was "in" a public or passenger conveyance within...