Owens v. Ocean Accident & Guarantee Corp., Ltd

• Decision Date: 08 November 1937
• Docket Number: 4-4785
• Citation: 109 S.W.2d 928,194 Ark. 817
• Parties: OWENS v. THE OCEAN ACCIDENT & GUARANTEE CORPORATION, LTD
• Court: Arkansas Supreme Court

109 S.W.2d 928

194 Ark. 817

OWENS v. THE OCEAN ACCIDENT & GUARANTEE CORPORATION, LTD

4-4785

Supreme Court of Arkansas

November 8, 1937

Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann Judge; reversed.

Judgment reversed and cause remanded.

Tom F Digby, for appellants.

House Moses & Holmes and Richard C. Butler, for appellee.

OPINION

GRIFFIN SMITH, C. J.

Appellants conduct a funeral home, and in connection with their business operate an ambulance or invalid coach.

Appellee, in 1934, issued its policy of insurance, under the terms of which it became liable to appellants for damages on account of bodily injuries, including death at any time resulting therefrom, and loss of services in consequence of such injuries sustained by any person or persons, caused by the ownership, maintenance, or use of a certain Henny ambulance invalid coach, as described in said policy. The contract further provided that the insurer would investigate any claim for such injury or damage and negotiate settlement thereof, and would defend suits arising from any such injury or damage, and would pay all costs incurred in the defense of suits, so instituted, growing out of the ownership, maintenance, or use of said motor vehicle, even if such actions were groundless.

In 1935, at a time when the insurance was in force, the ambulance identified in the policy was sent by appellants to the home of Mrs. Mollie Mason in North Little Rock for the purpose of transporting Mrs. Mason to the Baptist State Hospital. The ambulance was parked on the street in front of Mrs. Mason's home. A cot, utilized as a part of the ambulance equipment, was taken therefrom and Mrs. Mason was placed on it. While the cot was being so utilized in carrying Mrs. Mason from her home to the ambulance, she was carelessly allowed to fall from the cot to the pavement just as the attendants or servants were passing with the patient from the yard to the sidewalk. Appellee was promptly notified of the accident.

Subsequently, suit for damages to compensate for the injuries sustained was filed by Mrs. Mason against appellants. Appellee was notified that suit had been filed, but it declined to defend, assuming that under the terms of the insurance contract it was not obligated.

Appellants thereupon employed an attorney, who for $ 306 effectuated a settlement of Mrs. Mason's $ 30,000 claim. The attorney's fee was $ 250.

This appeal is from the action of the Pulaski circuit court, second division, wherein the judge, sitting as a jury by agreement of the parties, found that the policy issued by appellee did not apply to an accident sustained in the manner and in the circumstances herein stated.

Appellee relies upon a Tennessee case, J. H. Hinton & Son v. Employers' Liability Assurance Corporation, 166 Tenn. 324, 62 S.W.2d 47, the facts there being almost identical with those now before us. Mrs. Bell Hall, for the purpose of being conveyed from her home to a hospital, was placed on a stretcher taken from an ambulance, and while being taken to the ambulance an attendant negligently permitted the stretcher to fall, injuring Mrs. Hall. Suits were filed against the ambulance company, which were successfully defended, after the Employers' Liability Assurance Corporation had denied liability under its policy. The suit of Hinton & Son against the Employers' Liability Assurance Corporation was to recover court costs and attorneys' fees incurred in defending the suit brought by Mrs. Hall. The Supreme Court of Tennessee held that the insurance company was not liable. The clause of the insurance contract, claimed by Hinton & Son to be applicable, indemnified against damages "resulting from the ownership, maintenance, operation, or use" of the ambulance. Citing I Couch, Cyc. of Insurance Law, 174, the Tennessee court said: "This general and broad language must be construed with reference to the subject-matter and the nature of the risk involved, with due regard to the objects and intentions of the parties as the same may be gathered from the whole instrument."

In arriving at a determination of non-liability, the Tennessee court reviewed Panhandle Steel Products Co. v. Fidelity Union Cas. Co., (Texas Civ. App.), 23 S.W.2d 799, and Quality Dairy Co. v. Fort Dearborn Casualty Underwriters, (Mo. App.), 16 S.W.2d 613. In the Texas case, liability was affirmed in favor of a pedestrian who had been struck by an iron beam while the beam was being unloaded from a parked truck. It was held that the accident resulted from the "use of the truck" within the meaning of the insurance contract. The Texas court said: "It will be noted, further, that the language used in the liability clause of the policy is broad and general in its scope, and not restricted by any words to the effect that the injuries covered by that clause must be the 'proximate' result of the use of the truck, or that the injury must be sustained while the truck was being driven, or the result of collision or overturning."

In the Quality Dairy (Missouri) case, the court held that the obligation incurred by the insurer under a...