Jeffries v. General Cas. Co. of America

Decision Date28 April 1955
Docket NumberNo. 33084,33084
Citation46 Wn.2d 543,283 P.2d 128
CourtWashington Supreme Court
PartiesArthur D. JEFFRIES, Appellant, v. GENERAL CASUALTY COMPANY OF AMERICA, a corporation, Respondent.

Lycette, Diamond & Sylvester, Seattle, for appellant.

Gordon H. Sweany, Bruce Maines, Seattle, for respondent.

SCHWELLENBACH, Justice.

Appellant operates Jeff's Veltex Service Station, on Aurora Avenue, in Seattle. This is a general gasoline service station business which also includes the maintenance of a stock of trailers for rental to customers. Effective August 21, 1952, respondent issued a general garage liability insurance policy to appellant. On or about September 26, 1952, appellant rented a trailer to one Charles T. Corbin. As was customary, appellant hitched up or attached the trailer to Corbin's automobile. Later, while away from the service station premises, the trailer became unhitched and fell upon Corbin's foot. Corbin commenced an action against the appellant for damages, alleging negligence in hitching the trailer to the car. Defense of the action was tendered to respondent, but such defense was refused on the ground that the accident was not covered by the policy. Upon advice of counsel, appellant made a compromise settlement of the action for $3,750. Judgment was entered for said amount in favor of Corbin and against appellant. Appellant paid the judgment and brought this action against respondent to recover indemnity for the amount paid to satisfy the judgment and for necessary legal expenses in that action, together with costs and disbursements in this action. The trial court sustained a demurrer to the complaint and later dismissed the action.

The material parts of the policy read as follows:

'General Casualty Company of America

'Agrees with the insured, named in the declarations made a part hereof, * * * and subject to the limits of liability, exclusions, conditions and other terms of this policy:

'Insuring Agreements

'I. COVERAGE A--BODILY INJURY LIABILITY

'To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the hazards hereinafter defined.

* * *

* * *

'Definition of Hazards

* * *

* * *

'DIVISION 2--PREMISES--OPERATIONS--AUTOMOBILES NOT OWNED OR HIRED.

'The ownership, maintenance or use of the premises for the purpose of an automobile repair shop, service station, storage garage or public parking place, and all operations necessary or incidental thereto; and the use in connection with the above defined operations of any automobile not owned or hired by the named insured, a partner therein or a member of the household of any such person.

* * *

* * *

'Exclusions

'This policy does not apply: * * *

'(b) To any automobile while rented to others by the named insured, unless to a salesman for use principally in the business of the named insured, or to any haulaway, tank truck, tank trailer, or tractor used therewith, owned, hired or held for sale by the named insured and not being delivered, demonstrated or tested, or to any watercraft, while away from the premises; or, except under division 3 of the Definition of Hazards, to any elevator at the premises'.

Elsewhere in the policy, the word 'automobile' is defined to include a trailer. By paraphrasing and omitting portions irrelevant to this action, we find the substance of the contract to be as follows:

General Casualty Company of America agrees to pay all sums which the insured shall become legally obligated to pay as damages because of bodily injury sustained by any person, caused by accident and arising out of the ownership, maintenance and use of the premises for the purpose of a service station, and all operations necessary or incidental thereto; and the use in connection with the above defined operations of any automobile not owned or hired by the named insured; subject to the following exclusion: This policy does not apply to any automobile (trailer) while rented to others by the named insured, while away from the premises.

Appellant contends that the injury was caused by the negligent manner in which the trailer was hitched to the car and this was an operation incidental to the use of the premises for a service station. Respondent contends that this accident comes within the exclusionary provisions of the policy and that the company, therefore, is not liable.

Insurance contracts should be construed in accordance with the general rules applicable to other contracts. Goodwin v. Northwestern Mutual Life Insurance Co., 196 Wash. 391, 83 P.2d 231. The purpose of the insurance contract should be considered. If the contract is fairly susceptible of two different conclusions, the one which is most favorable to the assured will be adopted. Jack v. Standard Marine Insurance Company, 33 Wash.2d 265, 205 P.2d 351, 8 A.L.R.2d 1426. Where a clause in an insurance policy is ambiguous, the meaning and construction most favorable to the insured must be applied, even though the insurer may have intended another meaning. Kane v. Order of United Commercial Travelers, 3 Wash.2d 355, 100 P.2d 1036. But the rule that an insurance policy must be construed strictly against the company and liberally in favor of those afforded protection by it, has no application where the provisions of the policy are neither ambiguous nor difficult of comprehension. Handley v. Oakley, 10 Wash.2d 396, 116 P.2d 833. And a court is not at liberty to revise a contract under the theory of construing it. Evans v. Metropolitan Life Insurance Co., 26 Wash.2d 594, 174 P.2d 961.

We can assume here that the accident arose out of an operation incidental to the use of the premises for a service station. The case of O'Toole v. Empire Motors, Inc., 181 Wash. 130, 42 P.2d 10, would support such an assumption. There a motorist recovered from the...

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