Mackay v. Commonwealth Cas. Co.

• Decision Date: 15 January 1931
• Parties: NELLIE MACKEY, RESPONDENT, v. COMMONWEALTH CASUALTY CO., A CORPORATION, APPELLANT
• Court: Missouri Court of Appeals

34 S.W.2d 564

224 Mo.App. 1100

NELLIE MACKEY, RESPONDENT, v. COMMONWEALTH CASUALTY CO., A CORPORATION, APPELLANT

Court of Appeals of Missouri, Springfield

January 15, 1931

Appeal from Jasper County Court.--Hon. R. H. Davis, Judge.

AFFIRMED.

Judgment affirmed.

Allen & Allen for appellant.

(1) Where a policy of insurance contains no ambiguities, and the language of the policy is plain, concise, unequivocal and unambiguous, the courts in construing it will give its language its plain meaning. State ex rel. Park v Daues, 289 S.W. 957; State ex rel. Mutual Life Insurance Co. v. Allen, 305 Mo. 607, 276 S.W. 876; State ex rel. Western Auto Ins. Co. v. Trimble, 297 Mo. 659, 249 S.W. 902; State ex rel. American Fire Ins Co. v. Ellison, 269 Mo. 410, 190 S.W. 879; Penn. v Travelers Ins. Co., 225 S.W. 1033, 1034; Taylor v. Loyal Protective, 194 S.W. 1055, 1057; Bradshaw v. American Benevolent Assn., 112 Mo.App. 435; Robyn v. New Amsterdam Cas. Co., 257 S.W. 1065, 1069. (2) The plaintiff was not within a railroad car at the time she fell, for the slipping of the porter's box was the proximate cause of her fall. This was clearly not "within" the railroad car. The proximate cause of plaintiff's fall and the plaintiff herself were not "within" the railroad car at the time of her fall, and the accident does not come within the terms of the policy. Aetna Life Ins. Co. v. Vandecar, 86 F. 282; Van Boelken v. Travelers Ins. Co., 54 N.Y.S. 307, 60 N.E. 1121; Anable v. Fidelity & Cas. Co., 63 A. 92; Banta v. Continental Cas. Co., 134 Mo.App. 222; Mitchell v. Ins. Co., 179 Mo.App. 1; National Life Ins. Co. v. Fleming, 96 A. 281; Preston v. Ins. Co., 103 N.Y.S. 638.

Frank B. Birkhead for respondent.

(1) Language employed in an accident insurance policy is construed so as to effectuate the insurance and not defeat it and where language is doubtful in the least, it is to be strickly construed against the insurer. The courts will not permit a company to ingeniously construct a policy to hold out in one part while defeating it in another. Fidelity & Casualty Co. v. Hart, 133 S.W. 996; Young v. Ry. Mail Assn., 126 Mo.App. 325; Depue v. Travelers Ins. Co., 166 F. 183; 1 Bacon on Insurance, pp. 376-377, Vol. 2, p. 1151; 1 C. J., 414; Brown v. Ry. Assurance Co., 45 Mo. 221; 1 May on Insurance, 343. (2) The plaintiff was entitled to recover under Clause 1 of part Two of the policy. It was not necessary that she be "inside" the railroad car or "within the four walls" of the car at the time of the accident in order to recover under the policy. Schmohl v. Traveler Ins. Co., 177 S.W. 1108, 182 S.W. 740, 189 S.W. 597; Tooley v. Assurance Co., 24 F. Cas. No. 14,098, 3 Biss 399; King v. Ins. Co., 101 Ga. 64, 65 Am. St. Rep. 288; Depue v. Travelers Ins. Co., 166 F. 183; 2 May on Insurance, sec. 524; Wilmarth v. Ins. Co., 168 Cal. 536, 143 P. 780; Accident Ins. Co. v. Muir, 126 F. 926; Theobald v. Assurance Co., 10 Exch. 45; Berliner v. Ins. Co., 53 P. 918.

COX, P. J. Bailey and Smith, JJ., concur.

OPINION

COX, P. J.

Action upon an accident insurance policy. Plaintiff recovered and defendant appealed.

The case was tried before the court without a jury upon an agreed statement of facts. The only assignment of error is to the effect that upon the agreed statement of facts the plaintiff could not recover. The agreed facts as far as necessary to quote are as follows: The plaintiff rode as a passenger upon a vestibule passenger coach of the Frisco Railroad from Monett to Carthage, Missouri. The agreed statement of facts states, "When said train came to a stop at said station, the plaintiff arose from her seat inside the car and walked out into the enclosed vestibule of said car with other passengers who were leaving the train. That plaintiff walked down the steps of said car leading from the vestibule for the purpose of alighting from said car and that said steps were designated by the railroad company as the place for passengers to leave the train. That when plaintiff stepped with one foot from the lower step of the car to the moveable box provided by said railroad company for passengers to step upon before stepping down on the railroad station platform and while her other foot rested upon the lower step of said car and her hand grasped the handrail of said car, the moveable box slipped causing plaintiff to fall on the pavement of the station platform and under the train by reason of which she was injured."

The clause of the insurance policy upon which liability is claimed in this case is as follows: "1. While actually riding as a passenger in a place regularly provided for the transportation of passengers only within a railroad car, elevated, subway or interurban railroad car, street car or steam boat provided by a common carrier for passenger service."

The question of liability of defendant depends upon the meaning of the phrase "within a railroad car" as used in this policy and as applied to the facts of this case.

When plaintiff fell she had one foot on the moveable box placed on the platform at the station and the other foot on the lower step of the car while with one hand she grasped the handrail of the car. She, of course, did not receive the injury until she fell and came in contact with the pavement but we think her position at the time the box slipped and she began to fall must, for the purpose of this case, be taken as her position when injured. Was she at that time, with one foot still on the lower step of the car and one hand still grasping the handrail, "within a railroad car" under the provision of the policy above quoted? It needs no citation of authorities to say that in determining this question all reasonable doubt must be resolved against the appellant. Of course, if the language of the policy is so clear as to leave no room for construction, then the courts must give to it the meaning which its plain language imports but if, when applied to the facts of a given case, the language of the policy is reasonably susceptible of two meanings, one of which would render the company liable and the other release it, the courts must apply that construction which will render the company liable. The appellant from Webster's Dictionary the definition of the word "within" as "in the inner or interior part of; inside of; not without." Also from the Standard Dictionary as follows: "In the interior or interior part of; inside; opposed to outside" and says on its own account "the word 'within' in its common and accepted significance means in the inner of interior part of; inside and not without." Before attempting to apply these definitions to this case we must first consider the construction of the railroad car in which plaintiff rode and from which she was attempting to alight when she fell. This car was a vestibule car. It is a matter of common knowledge, and a fact of which we should take judicial notice, that the vestibule of a passenger car encloses both the platform and steps of the car. The vestibule is under the same roof as the car proper and is intended to make it safe for passengers to pass from one car to another while the train is in motion and to protect them from the wind or storm on the outside while doing so. The steps are covered by a trap door and the platform of the car is enclosed at all times except when opened to admit or discharge passengers. The platform and steps are a part of the car and when enclosed by a vestibule are as certainly a part of the enclosure of the car as is the men's wash room or the ladies dressing room or the floor and seats of the car, and when the door of the vestibule is closed, as it is at all times except when taking on or discharging passengers, a person standing in the vestibule or in a wash room or dressing room is as certainly within the enclosure of that car as are the persons seated within the walls of the car. They are then, as well as those seated in the seats, undoubtedly "within" the car. Plaintiff while riding in a seat in a passenger coach was concededly within the car. When the car stopped and she arose from her seat and started to alight from the car, she was still within the car but appellant contends that as soon as she passed from the part of the car containing the seats into the vestibule of the car she was no longer within the car. Was the vestibule within or inside the car when the outside door of the vestibule was closed and without or outside the car when this door was opened so passengers could alight by passing down the steps of the car? It seems to us that as to this question of whether plaintiff at the time she fell was still within the passenger car within the terms of this policy her situation is very similar to what it would be if she were, under the same circumstances, emerging from a building through an entrance way provided by building outside of the main building but under the same roof and enclosed by walls attached to the main building, in which there was built a platform with a floor on a level with the floor of the building and steps leading from this platform down to a door at the bottom of the steps that opened to allow persons to pass out upon the sidewalk. In that case there would be no doubt that a person passing out of the building would still be within the building until he had passed from the platform and down the steps within the enclosed entrance way and out through the door to the walk on the outside. We think the same conclusion should be reached as to a person passing out of a vestibule passenger car. In this case the plaintiff remained within the car until she had passed out into the vestibule and down the steps to the depot platform. She fell just an instant before reaching the platform. She was within the car until she had passed to a place...