Loveman, Joseph & Loeb v. New Amsterdam Cas. Co.

• Decision Date: 04 March 1937
• Docket Number: 6 Div. 999
• Citation: 173 So. 7,233 Ala. 518
• Parties: LOVEMAN, JOSEPH & LOEB v. NEW AMSTERDAM CASUALTY CO.
• Court: Alabama Supreme Court

173 So. 7

233 Ala. 518

LOVEMAN, JOSEPH & LOEB v. NEW AMSTERDAM CASUALTY CO.

6 Div. 999

Supreme Court of Alabama

March 4, 1937

Appeal from Circuit Court, Jefferson County; J. Edgar Bowron, Judge.

Action by Loveman, Joseph & Loeb against the New Amsterdam Casualty Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Leader Hill, Tenenbaum & Seedman, of Birmingham, for appellant.

Bowers & Dixon, of Birmingham, for appellee.

KNIGHT Justice.

Suit by appellant--plaintiff in the court below--against appellee upon a public liability insurance policy.

The plaintiff stated its cause of action in two counts, each upon the policy contract. The pleading thereto was in short by consent. The trial resulted in verdict and judgment for defendant upon instructions of the court, given upon an agreed statement of facts.

The material provisions of the policy, omitting such as are not here in point, are:

"The New Amsterdam Casualty Company does hereby agree with the assured (Loveman, Joseph and Loeb) named in the schedule of statements, subject to the limitations and conditions hereinafter provided, as respects bodily injuries or death suffered, or alleged to have been suffered as a result of any accident occurring while this policy is in force, by any person or persons not employed by the assured, by reason of the ownership, care and maintenance or the occupation and/or use of the premises for any business occupations described in the schedule of statements, (or by an employee of the assured if such injuries do not arise directly or indirectly out of or in the course of his employment by the assured, or in connection therewith while within or upon the premises described in the schedule of statements, or upon the sidewalks or other ways immediately adjacent thereto, or if caused by an employee of the assured elsewhere than upon the premises described in the schedule of statements in the course of his regular employment by the assured in connection with the business of the assured conducted on said premises:

"(1) To insure the assured, within the limits expressed in the schedule of statements against loss from the liability imposed by law upon the assured for damages on account of such injuries or death; ***

"Subject to the following conditions:

"Condition A: This policy does not cover any accident; *** (1) caused directly or indirectly by the possession, consumption, handling or use, elsewhere than upon the premises described in the schedule of statements, of any goods, article or produce, manufactured, handled or distributed by the assured unless covered hereunder by written permit endorsed on this policy."

Condition A quoted above is, and no doubt was intended as, a limitation upon the coverage of the policy, withdrawing claims there mentioned from the general stipulations of the policy, that is to say, narrows the general coverage of the policy to the extent of the excepted accidents.

It seems to be well settled that exceptions, "explicit in terms and plain of meaning," withdrawing a claim from the general stipulations of the policy, will be given effect. 5 Couch on Insurance, § 1165, p. 4088; Leaksville Light & Power Co. v. Georgia Cas. Co., 188 N.C. 597, 125 S.E. 123.

From the agreed statement of facts it appears that a Mrs. Thuss was a regular customer of the plaintiff, and was personally known to Mrs. Williamson, an employee of the plaintiff, who was engaged in selling its cosmetics, including preparations known as "Ardena Bronze" and "Sun Tan Oil"; and that this clerk had been so engaged for a period of five years preceding the occurrence complained of.

It further appears that on July 20, 1934, Mrs. Thuss went to the store of the plaintiff and called for Mrs. Williamson, and when this clerk appeared, Mrs. Thuss stated to her that she wanted some preparation to use to prevent sunburn, and Mrs. Thuss and this clerk then entered into a discussion as to the use of the preparation known as Ardena Sun Tan Oil. Sun Tan Oil is a preparation to be rubbed on the skin for the purpose of keeping it soft and "assuring a smooth, even color of tan while the person stays in the sun with the liquid on the skin."

After Mrs. Thuss was given detailed instructions as to the use of the Sun Tan Oil, she stated to the clerk she would take a bottle of it. However, the clerk sold and delivered to Mrs Thuss, by mistake, a bottle of Ardena Bronze, which was an entirely different preparation, applied in an entirely different manner and intended for an entirely different purpose. Ardena Bronze is a preparation used for the purpose of simulating sun tan and is not to be used in the sun and will not protect the skin from the sun.

After getting what she supposed to be Sun Tan Oil, Mrs. Thuss went out to the Warrior river, a distance of some 40 miles, where she had the preparation, which she thought was Sun Tan Oil, but which was in fact Ardena Bronze, applied to her body. After applying the preparation, she remained in the sun about 20 minutes.

As a result of the use of the Ardena Bronze Mrs. Thuss was severely burned and her skin greatly irritated, and was thereby caused...