Liberty Nat. Life Ins. Co. v. Kendrick

• Decision Date: 02 May 1968
• Docket Number: 3 Div. 335
• Parties: LIBERTY NATIONAL LIFE INSURANCE COMPANY v. Mackie Lou KENDRICK.
• Court: Alabama Supreme Court

Page 701

210 So.2d 701

282 Ala. 227

LIBERTY NATIONAL LIFE INSURANCE COMPANY v. Mackie Lou KENDRICK.

3 Div. 335.

Supreme Court of Alabama.

May 2, 1968.

Rehearing Denied June 6, 1968.

Edwin C. Page, Jr., Evergreen, for appellant.

Wm. D. Melton, Evergreen, for appellee.

MERRILL, Justice.

Appeal from a judgment in favor of appellee for $4,000 in a suit on a life insurance policy. Appellant's motion for a new trial was overruled.

The policy provided for payment of $1,000 for natural death, $2,000 for accidental death and $4,000 for death by automobile accident. The insured was driving an automobile when it was hit by a train at Binion Pool crossing which resulted in insured's death. Appellant paid the beneficiary $2,000 but benied the extra $2,000 for death by automobile accident because of the following provision in the policy:

'DEATH BY AUTOMOBILE ACCIDENT--Death by automobile accident means death for which the accidental death benefit would otherwise by (sic) payable but which results from injuries sustained while you are riding in an automobile on a public street or highway. * * *'

Appellant has aptly stated in brief the issue of fact to be decided in these words: 'The issue between the parties under the pleading is whether the Binion Pool road leading from Highway 31 to the old Binion swimming pool, and to the old Binion Camp House and on to the private camp called 'Money Sunk In' and to Murder Creek swamp was a public road or a private road. The Appellant insists it was a private road, and the Appellee that it was a public road.'

Title 36, Section 1(12), Code 1940, as amended, defines 'highway' as 'Every way or place of whatever nature open to use of the public as a matter of right for purposes of vehicular travel. * * * The term 'highway' shall not be deemed to include a roadway or driveway upon grounds owned by private persons.'

It is without dispute that no deed or formal dedication had ever been made to anyone so as to constitute the road as a public road. Most of the traffic on the road was in the summertime as people went ot use the swimming pool, admission to which was secured by paying the charge. This fee was collected at the pool. There was evidence that a gate was erected near the place where the road crossed the railroad tracks and that it was sometimes locked and formerly was locked most every night. There was also testimony by the engineer who was operating the train when the insured was killed that the road was used publicly and for twenty-four years he had seen people traveling the road. Another engineer, who had been making the same run for over twenty-four years, stated that people traveled the road in both directions, that the railroad had erected a crossing sign and maintained a whistle board for the crossing as it did at other public crossings, that on his run he crossed the road about twenty-six times a month, and that it had never been closed to his knowledge. A county commissioner testified that his right to enter the road had never been contested. Many witnesses testified to the absence of 'private' or 'no trespassing' signs and that they used the road whenever they chose. A foreman for the County Road Department testified that he graded the road as far back as 1947 at the direction of the then county commissioner, and another road employee stated that he operated a motor patrol and had graded the road several times, the last one of which was three months prior to the date of trial. Other witnesses testified that the public used the road, that the gate had been used to keep the livestock in and not to keep the public out. One of appellant's witnesses, who had lived on some of the property as a tenant or subtenant for about six years testified that the gate was always left open and anybody who wanted to could 'come down there.'

In Gulf States Steel Co. v. Beveridge, 209 Ala. 473, 96 So. 587, this court said:

'It is insisted the defendant is entitled to the affirmative charge upon the theory the plaintiff had not sufficiently met the burden of proof to establish that the road which was obstructed was a public road. Plaintiff offered the proof of numerous witnesses to the effect that this road had been used by the public uninterruptedly for more than twenty years without objection, and, further, that the road had been worked and kept up by the county authorities. One Lollar, witness for the plaintiff, testified that he worked that road more than 20 years ago as one of the county 'hands,' and that the county had in fact operated and worked the road for at least 22 years.'

It is the character rather than the quantum of use that controls in determining whether a way is public or private. Valenzuela v. Sellers, 246 Ala. 329, 20 So.2d 469; Still v. Lovelady, 218 Ala. 19, 117 So. 481.

The placing of stock gaps or gates to control livestock would not keep a road from becoming a public road where it was 'evident that by placing the stock gaps beside the gates, there was no interruption of the use by foot or automotive vehicles.' Huggins v. Turner, 258 Ala. 7, 60 So.2d 909.

We do not consider Rodgers v. Commercial Casualty Ins. Co., 237 Ala. 301, 186 So. 684, apt authority because it was a 'path' case and not a road used...