London & Lancashire Indem. Co. of America v. Duryea

• Decision Date: 13 December 1955
• Citation: 143 Conn. 53,119 A.2d 325
• Court: Connecticut Supreme Court
• Parties: The LONDON AND LANCASHIRE INDEMNITY COMPANY OF AMERICA v. Rose DURYEA et al. Supreme Court of Errors of Connecticut

Page 325

119 A.2d 325

143 Conn. 53

The LONDON AND LANCASHIRE INDEMNITY COMPANY OF AMERICA v. Rose DURYEA et al.

Supreme Court of Errors of Connecticut.

Dec. 13, 1955.

Joseph V. Fay, Jr., Hartford, with whom were Francis J. McCarthy, Hartford, and, on the brief, Warren Maxwell, Hartford, for the appellant (plaintiff).

David Goldstein and Bernard Glazer, Bridgeport, with whom, on the brief, were Benjamin A. Markman, Hartford, and Frank Logue, Trumbull, for appellees (defendants Margaret E. Young et al.); with them, on the brief, was Walter D. Briggs, Middleton, in behalf of the appellee (named defendant).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

BALDWIN, Associate Justice.

The plaintiff issued to Rose Duryea an owners' and tenants' liability policy, effective May 5, 1952, to cover premises on Main Street in the town of Colchester which were used for a restaurant where intoxicating liquors were sold. The policy contained the following agreements: '1. Coverage A--Bodily Injury Liability. To pay on behalf of the Insured all sums which the Insured shall become obligated to pay by reason of the liability imposed upon him by law for damages * * * because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of such of the hazards hereinafter defined as are indicated by specific premium charge or charges. * * *' The hazards covered were defined as follows: 'Division 1. Premises--Operations. The ownership, maintenance or use, for the purposes stated in the Declarations, of the premises and all operations during the policy period which are necessary or incidental to such purposes.' The purposes of use stated in the declarations were: 'Restaurants--et al. Code 1318.' The specific premium charge in the declarations was for bodily injury liability.

On March 9, 1953, Margaret E. Young, individually and as administratrix of the estate of Clifford W. Young, and Margaret S. Young, executrix of the estate of Clifford E. Young, brought an action against Rose Duryea to recover damages for bodily injuries sustained by Margaret E. Young and for the deaths of Clifford E. Young and Clifford W. Young. They alleged that the injuries and deaths resulted from a collision, on October 19, 1952, between automobiles operated by the decedent Clifford E. Young and Ralph Bennett, which was caused by the acts of Rose Duryea, or of her agents, servants or employees, in serving intoxicating beverages to Bennett when she, or they, knew or should have known that he was intoxicated.

The plaintiff brought the present action for a judgment declaring that the cause of action alleged in the complaint in the Young suit, described in the preceding paragraph, is not within the coverage of the insurance policy issued by the plaintiff to Rose Duryea. The defendants in the present action are Rose Duryea, who is the plaintiff's insured, and the plaintiffs in the Young suit, that is, Margaret E. Young, individually and as administratrix, and Margaret S. Young, executrix. The instant case was presented by the parties and tried by the court upon the theory that the complaint in the Young suit stated a cause of action under § 4307 of the General Statutes. ¹ Whether it does allege a good cause of action and whether the statute is a valid exercise of legislative power we are not required to decide, for we shall consider the present case upon the same theory as the trial court. Maltbie, Conn.App.Proc., p. 32.

Section 4307 was enacted in 1933 following the repeal of the eighteenth (prohibition) amendment to the federal constitution. ² Cum.Sup.1935, § 1088c. It is designed to establish a cause of action against the seller of intoxicating liquor upon proof of three essentials: (1) a sale of intoxicating liquor (2) to an intoxicated person (3) who, in consequence of such intoxication, causes injury to the person or property of another. It differs fundamentally from its predecessor, § 2815 of the Revision of 1918, ³ which became obsolete when the eighteenth amendment to the federal constitution went into effect in 1920. See Ref. Table, Rev.1930, p. xvi. To establish a cause of action under § 2815, it was essential to prove a sale of intoxicating liquor, to be drunk on the premises, to a person who thereby became intoxicated and, while intoxicated and in consequence of that condition, injured the person or property of another. In other words, under § 2815 liability was predicated upon proof of a causal connection between the sale of the intoxicating liquor and the injury. Under § 4307 it is not. Whether the legislature intended so drastic a change is not for the court to speculate. The language of § 4307 is plain and it cannot be construed to embrace something which obviously it does not. City of Danbury v. Corbett, 139 Conn. 379, 384, 94 A.2d 6; State ex rel. Rourke v. Barbieri, 139 Conn. 203, 207, 91 A.2d 773.

This brings us to the question whether the liability imposed by § 4307 is covered by the policy of insurance issued by the plaintiff to Rose Duryea. When the language of an insurance contract is fairly open to different interpretations, the one which will sustain the insured's claim is the one to be adopted. Scranton v. Hartford Fire Ins. Co., 141 Conn. 313, 315, 105 A.2d 780, and cases cited. On the other hand, if the language is plain and unambiguous, it must be accorded its ordinary meaning. A court cannot import into an insurance policy an ambiguity where none exists and give to its language a meaning which the parties obviously never intended. Komroff v. Maryland Casualty Co., 105 Conn. 402, 406, 135 A. 388, 54 A.L.R. 463; Porto v. Metropolitan Life Ins. Co., 120 Conn. 196, 200, 180 A. 289. An insurance company has the same right as any other party to a contract to state the terms upon which it shall be obligated, provided those terms do not contravene statutory requirements or public policy. 7 Appleman, Insurance Law & Practice, § 4255. In the instant case the plaintiff does not undertake to insure all liability imposed by law upon Rose Duryea but only the liability which arises out of the circumstances described in the policy.

By the plain terms of the policy, the plaintiff agrees to pay on behalf of its insured all sums which the insured may become obligated to pay by reason of the liability imposed upon her by law for damages 'because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of' the hazard covered in the policy. That hazard is defined as the 'ownership, maintenance or use' of the described premises for a restaurant which includes, though it is not expressly so stated, the sale of intoxicating liquor. The decisive words are 'caused by accident and arising out of.' It seems obvious that these words modify 'bodily injury, including death * * * resulting therefrom.' The bodily injury must be 'caused by' accidental and not intentional means. 7 Applement, op. cit., § 4312. So far as the instant case is concerned, it must arise out of the sale of intoxicating liquor. The words "arising out of" mean 'caused by.' Larke v. John Hancock Mutual Life Ins. Co., 90 Conn. 303, 309, 97 A. 320, 322 L.R.A.1916E, 584; Jacquemin v. Turner & Seymour Mfg. Co., 92 Conn. 382, 384, 103 A. 115, L.R.A.1918E, 496; Allen v. Travelers Indemnity Co., 108 Vt. 317, 323, 187 A. 512.

The delict defined by § 4307 is not the sale of liquor to create a condition of intoxication. It is rather the sale of liquor to one who is already intoxicated. Accordingly, the damages for which it is claimed that Rose Duryea is liable are...