Johnson v. Glens Falls Ins. Co.
| Decision Date | 14 March 1925 |
| Docket Number | 11717. |
| Citation | 127 S.E. 14,131 S.C. 253 |
| Parties | JOHNSON v. GLENS FALLS INS. CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Horry County; E. C Dennis, Judge.
Action by V. M. Johnson against the Glens Falls Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
John T Seibels, of Columbia, and M. A. Wright, of Conway, for appellant.
Sherwood & McMillan, of Conway, for respondent.
The action is based upon a policy of insurance, by which the company undertook to indemnify the insured from loss or damage to an automobile, resulting from certain enumerated perils. The case is therefore to be decided upon two considerations: (1) The circumstances under which the injury complained of occurred; and (2) whether the injury was a result of a peril insured against by the terms of the policy.
The circumstances of the injury are concededly beyond controversy. In the early hours of the morning, some time between midnight and 4 o'clock in the morning, Johnson arrived at the Yahannah Ferry, over Pee Dee river; he was driving his car, and a colored man sat with him on the front seat; Johnson aroused the ferry man, who came down to put him across; the end of the boat rested on the near bank, and Johnson was directed to drive his car beyond the middle of the boat so that its weight would release the end of the boat that was resting on the bank; he did so, and, the boat coming clear, they started across; when they reached about the middle of the stream, Johnson, under the steering wheel and the colored man by his side, the automobile which was still in gear, for some unexplained cause, suddenly and swiftly moved forward, struck the "apron of the boat, broke it, and plunged over the far end of the boat into the river; the colored man jumped out of the car onto the boat, and Johnson went over into the river with the car. The "apron" of the boat was an appliance, made of plank, used to make the approach to and departure from the boat more convenient; it was thrown back onto the boat when not so used; it was not intended to prevent a car from rolling off the end of the boat; the boat was not equipped with a chain to prevent this. There was no evidence tending to show that there was any defect connected with the boat which in any way contributed to the disaster; on the other hand, it is perfectly clear that the sole cause of it was the improper handling of the car by the plaintiff who was at the wheel and in absolute control of it. Was this the result of a peril insured against by the terms of the policy? The answer must be found in the terms of the policy.
It is alleged in the complaint that the policy insured the plaintiff against the following perils:
I think that the policy shows upon its face, plainly and without the slightest ambiguity, that the perils insured against were the stranding, sinking, collision, burning, or derailment of the conveyance in which the automobile was being transported at the time of the injury. The conveyance was a ferry boat; the evidence shows that the ferry boat was not stranded; it did not sink; it was not burned; it did not collide with anything; and, of course, was not derailed. While the automobile was being transported across the river, by improper handling, it suddenly and swiftly, "in the twinkling of an eye" (as the plaintiff testified), moved forward, broke the feeble resistance of the "apron," and plunged over the end of the boat into the river. How this catastrophe can be charged to the stranding, sinking, burning, collision, or derailment of the ferry boat, against which perils alone the plaintiff was insured, none of which happened, I cannot conceive.
That these terms are referable to the conveyance in which the transportation was being effected, and not to the automobile which was being transported, appears to me too plain for discussion. It is fundamental that all of the terms of a contract shall be considered and given effect if possible, and, if it should be held that, notwithstanding the obvious limitation, the policy covered all loss during transportation, no matter how caused, we read into the contract something that is not there, and annihilate something that is. The reference to "general average" and "salvage," terms applicable to water transportation, leave no doubt that stranding, etc., referred to the conveyance.
I do not at all appreciate the force of the suggestion in the opinion of Mr. Justice Fraser that, because the policy exempts the company from liability in case the automobile shall "be used for carrying passengers for compensation, or rented, or leased, or operated in any race or speed contest, during the term of this policy," such a limitation would be without meaning if the other limitation in the policy that the perils insured against were only fire, lightning, and stranding, etc., of the conveyance, be given effect. No valid reason, to my mind, has been suggested why both limitations should not be given effect; they certainly are not inconsistent with each other. It is entirely possible that the conveyance in which the automobile was being transported stranded, sunk, collided, burned, or derailed, and yet, if the automobile at the time was being used for carrying passengers for compensation, or rented, or leased, or was being operated in any race or speed contest, the exemption would apply.
I also fail to appreciate the force of the suggestion:
"Besides this, the jury might have come to the conclusion that when the flat was at the landing, the end next to the shore was resting on the bank, i. e., that end stranded; that when the automobile (a very heavy car) was driven onto the flat, it was driven close to the other end, so as to lift up the shore end, and lower or sink the other end, and the forward end being lower, the attraction of gravitation drew the car off into the water."
I do not see the slightest ground for such an inference; the jury could not have been justified in imagining such a conclusion, in view of the admitted fact, testified to by the plaintiff, that the car moved off while the boat was in midstream, after it had righted itself, and there is no evidence tending to show that the movement of the car off of the boat was due to the extreme forward position of the car or that that position caused more than a momentary depression of the forward end as the boat left its mooring. The defendant's motion for a directed verdict should have been granted.
It is accordingly adjudged that the judgment of the circuit court be reversed and the cause remanded for the entry of judgment in accordance with rule 27 of this court.
MARION, J., and LUMPKIN, A. A. J., concur.
GARY, C.J., did not participate.
LUMPKIN, A. A. J. (concurring).
It is my conclusion that the motion for a directed verdict should have been granted. My first impression was that this case was controlled by the recent decision rendered in Wheeler v. Globe & Rutgers Fire Ins. Co., 125 S.C. 325, 118 S.E. 609. After a careful study of the facts here presented as applying to defendant's motion for directed verdict, I am convinced that an entirely different issue arose in this case than in the Wheeler Case. It is true that the court decided in the Wheeler litigation that the contract was ambiguous as applied to the claim for loss there presented, therefore for the determination of the jury. The issue was whether the automobile in question was in actual course of transportation at the time of the alleged loss, and, if so, was it covered by the terms of the policy introduced in evidence?
In the present case no issue of transportation arises. The ferry boat was moving smoothly and satisfactorily across the stream, when suddenly and without warning the car went forward over the end of the boat, broke the wooden apron, and sank into the river; the owner at the time sitting under the steering wheel. This is not a general accident policy. The causes for liability are specifically limited. The perils insured against are:
There is no claim for loss by fire or lightning. The machine in question was admittedly being safely transported by water at the time of the alleged loss. The claim under such a policy must then be based on some named peril occurring to the vehicle of transportation. To carry this issue to the jury evidence should be presented by the plaintiff showing that, while being transported, there was a stranding, sinking, collision, or burning of the ferry boat which caused the loss.
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