Life & Cas. Ins. Co. of Tennessee v. Bottoms

• Decision Date: 06 October 1932
• Docket Number: 6 Div. 125.
• Citation: 225 Ala. 382,143 So. 574
• Parties: LIFE & CASUALTY INS. CO. OF TENNESSEE v. BOTTOMS.
• Court: Alabama Supreme Court

143 So. 574

225 Ala. 382

LIFE & CASUALTY INS. CO. OF TENNESSEE v. BOTTOMS.

6 Div. 125.

Supreme Court of Alabama

October 6, 1932

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Action on a policy of accident insurance by Dora E. Bottoms against the Life & Casualty Insurance Company of Tennessee. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Reversed and remanded.

p>Page Huey, Welch & Stone, of Bessemer, for appellant.

McEniry & McEniry, of Bessemer, for appellee.

GARDNER J.

James H. Bottoms, while riding in a motorcycle on the streets of Bessemer, Ala., was killed by collision of an automobile with the motorcycle. He had accident insurance in force at the time in what is designated as "Industrial Travel and Pedestrian Policy," and this suit is by his widow, the named beneficiary in said policy, to recover thereon.

There are numerous assignments of error, but stripped of all superfluous matter and reduced to the last analysis, there is but a single meritorious inquiry presented, decisive however of this appeal, and the discussion of which may be brought within a narrow compass. Plaintiff relies for recovery upon the following clause in the policy: "Subject to all its terms and conditions, this policy is extended to cover a telegraph or other messenger boy, if injured on the street while attending to his duties of his employment, whether standing still, walking or riding, and also extended to cover truck driver, taxicab drivers, street car motormen and street car conductors, when engaged in the line of their employment in actually driving or operating a public conveyance."

The complaint alleges, and it is insisted the proof tends to show, that the insured was a "messenger boy" within the meaning of the foregoing provisions of the policy, and accepting this theory, the trial court submitted the question for the jury's determination and refused the affirmative charge requested by the defendant. This presents the pivotal question in the case.

We feel constrained to a view contrary to that entertained in the court below. This court has repeatedly given application to the liberal rule of construction in favor of the insured of insurance policies in case of any ambiguity, but with equal consistency our holding has been that when the language is unambiguous, and but one reasonable construction of the contract is possible, it must be expounded as made, for the courts are not at liberty to make new contracts for the parties. New York Life Ins. Co. v. Torrance, 224 Ala. 614, 141 So. 547, and authorities therein cited.

Like thought is differently expressed in Home Loan & Finance Co. v. Fireman's Fund Ins. Co., 221 Ala. 529, 129 So. 470, 471, in the following language: "The true intent governs insurance contracts the same as others. While doubtful terms are construed in favor of the insured, no strained construction should be indulged to raise doubt."

And in considering the proper interpretation of the words "messenger boy," in the above noted clause, we should not overlook the ancient maxim, noscitur a sociis, the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it (somewhat broader in its scope than the kindred maxim ejusdem generis), and which was of controlling influence in the recent case of Louis Pizitz Dry Goods Co. v. Fidelity & Deposit Co., 223 Ala 385, 136 So. 800. The language is "telegraph or other messenger boy," and under this well-known maxim the words "messenger boy" must be held to take color from and be interpreted in connection with the word "telegraph" with which they are thus so closely associated. The court may take judicial cognizance of the functions and duties in a general sense of a telegraph messenger boy, as they may be said to form a part of the common knowledge of every person of ordinary understanding and intelligence. 23 Corpus Juris 59.

In Pfister v. Central Pacific R. Co., 70 Cal. 169, 11 P. 686, 690, 59 Am. Rep. 404, the California court considered the words "public messenger," and while not therefore here directly in point, yet the definition therein found suffices, we think, to also demonstrate...