Metropolitan Cas. Ins. Co. of New York v. Curry

• Decision Date: 26 October 1945
• Citation: Metropolitan Cas. Ins. Co. of New York v. Curry, 24 So.2d 316, 156 Fla. 502 (Fla. 1945)
• Parties: METROPOLITAN CASUALTY INS. CO. OF NEW YORK, Petitioner, v. Robert Hugh CURRY, Respondent.
• Court: Florida Supreme Court

24 So.2d 316

156 Fla. 502

METROPOLITAN CASUALTY INS. CO. OF NEW YORK, Petitioner, v. Robert Hugh CURRY, Respondent.

Florida Supreme Court

October 26, 1945

On Rehearing Dec. 21, 1945.

McKay Dixon & DeJarnette and Sam C. Matthews, all of Miami, for petitioner.

Hendricks & Hendricks, of Miami, for respondent.

BROWN, Justice.

This cause is before us on a petition for certiorari to review a judgment of the Circuit Court of Dade County, sitting as an appellate court, affirming a judgment in favor of the respondent Curry which had been recovered by him against the petitioner in the Civil Court of Record of Dade County. The action was brought upon an insurance policy issued by the petitioner, the Metropolitan Casualty Company of New York, to the respondent and which was in full force and effect at the time of his injuries on March 25, 1941. The case was tried on a stipulation of facts, the pertinent portion of which reads as follows:

'That on said date the plaintiff was engaged in the line of his duties in assisting with the delivery of certain bottled drinks, which drinks were being transported by the plaintiff and another person in a motor truck; that on said date the motor truck was parked on the Tamiami Trail, approximately twenty miles west of Miami, Florida; that the plaintiff saw a motor vehicle approaching from the rear traveling toward Miami and saw that the operator of said vehicle apparently did not observe the presence of the parked truck; that the plaintiff stood upon a catwalk which ran from the front to the rear of the truck for the purpose of facilitating the handling of the bottled drinks and, standing upon such catwalk, attempted to attract the attention of the on-coming motor vehicle so that it would swerve and miss the parked truck; that the operator of the on-coming motor vehicle still unaware of the presence of the truck continued to approach it at a high rate of speed, struck the rear end of the truck and knocked the plaintiff to the ground and he sustained injuries which resulted in his total disability for the period from March 25, 1941 to September 23, 1941, or 26 weeks, and a partial disability for 4 weeks additional; that the plaintiff was not struck by the motor vehicle which caused him to be thrown to the ground and that the vehicle upon which the plaintiff was standing at the time it was struck was not a private passenger automobile, a taxicab, a motor bus, or a motor stage, but was a delivery truck, it being the purpose of this stipulation to submit to the court whether or not the foregoing facts bring the plaintiff's case within the provisions of Section C of the policy sued upon.'

The pertinent portion of the policy referred to is Section C, or clause C of the first paragraph of said policy, which reads as follows:

'Hereby insures the person named as applicant in the copy of the application for this Policy endorsed hereon, subject to the provisions, conditions and limitations herein contained against loss or disability, affected during the term of this Policy, resulting directly, independently and exclusively of all other causes from bodily injuries effected solely through external, violent and accidental means (suicide while sane or insane, is not covered) which bodily injuries or their effects are not caused wholly or in part directly or indirectly by any disease, defect or infirmity, and sustained by the Insured (a) while riding within a private passenger automobile (including any taxi-cab, motobus or motor stage) and provided such injury results from an accident to the automobile; or (b) while cranking a private passenger automobile; or (c) in consequence of being struck by an automobile which is in motion under its usual motive power; or (d) caused by the burning of a private passenger automobile,' etc.

It will have been observed from the above that the plaintiff was not struck by an automobile in motion under its usual motive power, but that plaintiff was standing on a parked truck which was struck by the on-coming automobile, and that as a result of this collision plaintiff was knocked or thrown to the ground and injured.

The question is: Are the stated facts sufficient to bring the plaintiff's case within the provisions of Clause C of the policy sued upon?

The rule is well established that where there is any doubt or ambiguity in the words or language used in an insurance policy, such ambiguity must be construed most strongly in favor of the insured. But the question arises, is there any ambiguity in the language of the policy? It insured the respondent here against loss or disability sustained by the insured 'in consequence of being struck by an automobile which is in motion under its usual motive power.' It is argued that the policy does not state 'that the automobile itself must...