Kirk v. Nationwide Mut. Ins. Co.

• Decision Date: 10 May 1961
• Docket Number: No. 377,377
• Parties: Zeb V. KIRK and Virginia Smith Young, CoExecutors of Jason B. Strange, Deceased, v. MATIONWIDE MUTUAL INSURANCE COMPANY.
• Court: North Carolina Supreme Court

Page 645

119 S.E.2d 645

254 N.C. 651

Zeb V. KIRK and Virginia Smith Young, CoExecutors of Jason B. Strange, Deceased, v. MATIONWIDE MUTUAL INSURANCE COMPANY.

No. 377

Supreme Court of North Carolina.

May 10, 1961

Stoner & Wilson and T. H. Suddarth, Jr., Lexington, for plaintiffs.

Walser & Brinkley, Lexington, for defendant.

MOORE, Justice.

Jason B. Strange was employed by the Southern Railway Company in the car department. He worked in and out of the Spencer shops. On 26 November 1958 a railway car ran a 'hot box' at Hickory. The car had been 'jacked up' and the wheels changed. Strange and one Peacock, in the course of their employment, were sent to return the jacks to the shops. For this purpose they used a specially equipped 2 1/2 ton Chevrolet maintenance truck owned and furnished by the Railway Company. They drove the truck to the location and prepared to load the jacks.

The truck had been 'stripped' down, leaving of the original vehicle only the cab and chassis; and a special body was built on the back. The truck had one set of dual wheels on the rear, with flat steel fenders over and extending three inches beyond, the wheels. A hydraulic boom, 16 to 18 feet long, was mounted on and attached to the body. The boom was powered by a dynamo motor. Levers and two crane wheels for controlling the boom were mounted to the rear of the cab. The body had boxes, sections and compartments for storing and transporting tools, accessories, equipment, wood boards and wedges, chains, cables, hammers, train wheels, railroad jacks, and torches. There was a special place on the right side of the body for loading and carrying the jacks.

The jack which Strange and Peacock began loading first was three feet long and weighed about 250 pounds. A steel cable ran along the boom. At the end of the cable was a steel hook. Strange attached the hook to the jack. Peacock was at the controls to manipulate the boom. Strange remained on the ground to assist in guiding the jack to the proper position on the truck. To the right of and above the truck were high voltage electric transmission wires. In raising the jack, the boom and steel cable came into contact with the wires and Strange was electrocuted.

Peacock recounts the occurrence as follows: 'He (Strange) was standing between the right rear wheels and the wires. * * * I could not see him but I would say he was approximately three or four feet from the truck. * * * The last thing I heard Strange say * * * he had a habit of say(ing), 'hey', and that was the last thing I heard, * * * I then got off the truck and went around and saw him lying on the ground. * * * I found his body lying at the right rear wheel. The closest part of his body to the wheel I would say was approximately six inches. His head was at the wheel and the body extended out toward the wire. * * * He was unconscious but breathing. * * * The jack that we had swung around was hanging up over his body approximately three feet from the ground.'

Just prior to the accident the part of Strange's body nearest to the truck was his left hand. After the accident there were 'a few black spots on his left hand * * * on the inside of the fingers near the end of the fingers. ' The truck was charged with electricity. Upon arrival at the hospital Strange was pronounced dead.

On 8 June 1958 defendant insurance company issued to Jason B. Strange and Southern Railway Company 'Comprehensive Family Liability and Automobile Combination Policy No. 61-900-130. Endorsement 409B-1 was attached to and a part of the policy. The endorsement names Jason B. Strange as insured. The principal sum for death indemnity is $5,000. The pertinent portions of the endorsement are as follows:

'The Company agrees with the named insured, in consideration of the payment of the premium and in reliance upon the declarations and subject to the limits of liability, exclusions, conditions and other terms of this endorsement and of the policy * * *. To pay the principal sum * * in the event of the death of the Insured which shall result directly and independently of all other causes from bodily injury caused by accident and sustained by the insured while in or upon or while entering into or alighting from, or through being struck by, an automobile * * *.

'Exclusions. This insurance does not apply * * * to bodily injury or death sustained in the course of his occupation by any person while engaged * * * in duties incident to the operation, loading or unloading of, or as an assistant on, a public or livery conveyance or commercial automobile. * * *'

The premium had been fully paid and the insurance was in force at the time of insured's death. The annual premium on the Death Indemnity feature of the Endorsement was $1.80. Plaintiffs in apt time filed with defendant proof of loss and demanded payment of the principal sum. Defendant denied liability under the terms of the policy and this action was instituted.

At the trial defendant offered no evidence and moved for nonsuit at the close of plaintiffs' evidence. The motion was overruled and defendant excepted. The question for decision on this appeal is whether or not the court erred in refusing to nonsuit the action.

It is our opinion, and we so hold, that the trial court erred in denying defendant's motion for nonsuit.

In cases involving insurance contracts, the burden is on him who claims benefits thereunder to offer evidence which brings him prima facie within the coverage of the policy, and upon such showing the burden is upon the insurer to prove defenses under the exclusion clauses. Fallins v. Durham Life Insurance Co., 247 N.C. 72, 100 S.E.2d 214. 'When the plaintiff fails to show coverage under the insurance clause of a policy, nonsuit is proper. If the plaintiff's evidence makes out a case of coverage and at the same time establishes the defense that the particular injury is excluded from coverage, nonsuit is likewise proper. ' Slaughter v. State Capital Life Insurance Co., 250 N.C. 265, 108 S.E.2d 438, 441.

In the instant case, it is unnecessary to decide whether or not plaintiffs have made out a case of coverage under the insuring clause. It must be understood that we express no opinion on this question. Plaintiffs' evidence definitely shows that the injury to and death of Jason B. Strange, under the terms of the Exclusions clause, is excluded from coverage.

In their brief plaintiffs make the following admissions: 'In all candor it must be conceded that the death of plaintiffs' intestate was sustained in the course of his occupation and while he was engaged in the duties incident to the loading the maintenance truck. It is admitted that the truck in question is under the holdings of this and other jurisdictions an automobile. The Death Indemnity Endorsement 409B-1 defines automobile as 'a land motor vehicle or trailer not operated on rails or crawlertreads * * *.' Thus the sole question is whether the heavy maintenance truck which plaintiffs' intestate (testate) was helping to load is 'commercial automobile."

Plaintiffs very properly conceded that the truck in question is an 'automobile' according to the definition contained in the policy itself, and under the decisions of this Court. Seaford v. Nationwide Mutual Insurance Co., 253 N.C. 719, 117 S.E.2d 733. The sole question for decision is: Is it a 'commercial automobile'?

An insurance policy is a contract between the parties, and the intention of the parties is the controlling guide in its interpretation. Gaulden v. Pilot Life Insurance Co., 246 N.C. 378, 384, 98 S.E.2d 355. It is to be construed and enforced according to its terms. Haneline v. Turner White Casket Co., 238 N.C. 127, 129, 76 S.E.2d 372. When the policy expressly defines such terms as 'commercial automobile' or 'commercial use' in reference to the coverage in question, the policy definition must be accepted and applied. Commercial Standard Insurance Co. v. Blankenship, 6 Cir., 1943, 134 F.2d 784; American...