Primrose v. Casualty Company
| Decision Date | 06 July 1911 |
| Docket Number | 167 |
| Citation | 81 A. 212,232 Pa. 210 |
| Parties | Primrose v. Casualty Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 5, 1911
Appeal, No. 167, Jan. T., 1910, by defendant, from judgment of C.P. No. 1, Phila. Co., Sept. T., 1908, No. 1,251, on verdict for plaintiff in case of Annie E. Primrose v Casualty Company of America. Affirmed.
Assumpsit on an accident insurance policy. Before KINSEY, J.
The opinion of the Supreme Court states the case.
Verdict for plaintiff for $11,646.08 and judgment thereon. Defendant appealed.
Error assigned was refusal to enter judgment for defendant n.o.v.
Judgment affirmed.
Thomas Leaming, for appellant. -- When seated in the touring car automobile, which had been hired by himself and his companions for their private and exclusive use, the deceased was not a passenger, nor was the automobile a public conveyance provided for passenger service, within the terms of the contract of insurance: McColligan v. R.R. Co., 214 Pa. 229.
Ira Jewell Williams, with him Alex. Simpson, Jr., and Francis Shunk Brown, for appellee. -- The insured was a passenger: Penna. R.R. Co. v. Price, 96 Pa. 256; Perry v. R.R. Co., 41 Pa.Super. 591; Fox v. Philadelphia, 208 Pa. 127; Coryell v. Dubois Boro, 226 Pa. 103.
The Bellevue-Stratford garage was a common carrier and its conveyances held open for general public hire and operated by its own chauffeurs were public conveyances: Ripley v. Insurance Co., 83 U.S. 336; Lloyd v. Storage & Transfer Co., 223 Pa. 148; Beckman v. Shouse, 5 Rawle, 179; Little v. Hackett, 116 U.S. 366 (6 S.Ct. Repr. 391); Missouri Pacific Ry. Co. v. Texas, etc., Ry. Co., 41 Fed. Repr. 316; Gibson v. R.R. Co., 226 Pa. 198.
Before FELL, C.J., BROWN, MESTREZAT, POTTER, STEWART and MOSCHZISKER, JJ.
The defendant company issued an accident insurance policy to Frank J. Primrose, the husband of the plaintiff, by the terms of which it covenanted to pay her $10,500 in the event of his sustaining bodily injuries which should result in his death. In addition to this there was the following clause: While the policy was in force the insured and several friends were riding in an automobile hired by them from the Pennsylvania Taximeter Cab Company. It was in the charge of and driven by a chauffeur in the employ of that company. The night was dark and foggy and the machine left the road, striking a telegraph pole with such violence that all of the occupants were thrown out of it. Primrose sustained injuries from which he subsequently died. The appellant paid to the appellee the amount of the single indemnity, and in this action she recovered a judgment in the court below for the additional sum of $10,500, with interest, the trial judge having held that the injuries to the deceased were "received while riding as a passenger in a public conveyance provided for passenger service, and propelled by gasoline." From that judgment we have this appeal, to be disposed of under undisputed facts. No testimony was offered by the defendant, and there is no assignment of error complaining of anything proven by the plaintiff.
That the automobile in which the insured was riding was a conveyance is not questioned; that it was propelled by gasoline is conceded, and, if it was "a public conveyance, provided for passenger service," the deceased was a passenger in it within the terms of the double indemnity clause of the policy. The only question, then, is, whether the conveyance was one embraced within that clause.
The contention of the learned counsel for the appellant is that the double indemnity clause is applicable only to the case of a person occupying a place for which he pays a fare in a railway car or conveyance operated for the common use of himself and of such promiscuous persons as may happen to take passage en route, over which conveyance he exercises no control. It is to be noted that the clause was inserted by the insurer itself in the policy of insurance which it issued to the insured, and, if it intended that the same should have the restricted meaning for which its counsel now contend, it could have readily so worded the clause. The insurance company could have so framed it that there would now be no doubt that the appellee could not insist that it was intended to extend to her claim. It is next to be remembered that, as the words used in the clause are the language of the insurer a salutary rule of construction requires them to be construed most favorably to the insured: Hughes v. Central Accident Insurance Co., 222 Pa. 462; May on Insurance, sec. 175; and, for the same reason, if the clause is capable of two interpretations equally reasonable, that is...
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