Quinn v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 11 May 1961
• Docket Number: No. 17781,17781
• Court: South Carolina Supreme Court
• Parties: Roy T. QUINN, Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.

Page 15

120 S.E.2d 15

238 S.C. 301

Roy T. QUINN, Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.

No. 17781.

Supreme Court of South Carolina.

May 11, 1961.

Butler & Chapman, L. Paul Barnes, Spartanburg, for appellant.

Frank Sawyer, Spartanburg, for respondent.

MOSS, Justice.

Roy T. Quinn, the respondent herein, brought this action against State Farm Mutual Automobile Insurance Company the appellant herein, to recover benefits under a policy of insurance, which provides for the payment of medical expenses for injury resulting from 'being struck by an automobile'.

It is alleged in paragraph 4 of the complaint,

'That on or about April 18, 1959, approximately 11:00 A.M. the Plaintiff stopped on Highway 85 near Blacksburg, South Carolina, to watch an automobile wrecker get out of a gully beside said Highway. The driver of the wrecker, Mr. C. H. Shook, placed a piece of timber under the rear wheels for traction. Said driver got into the wrecer and spun the wheels causing the piece of timber to be thrown against the Plaintiff's leg breaking it. As a result of said accident the Plaintiff has incurred medical expenses in the amount of Seven Hundred Fifty ($750.00) Dollars. That the automobile wrecker was the proximate cause of the Plaintiff's injury.'

The appellant interposed a demurrer to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action, in that:

'(a) The Complaint affirmatively shows upon its face that the injuries allegedly received by the Plaintiff were due to his being struck by a piece of timber and not by an automobile.

'(b) That the allegations of the Complaint affirmatively show that the coverage of the insurance policy was for injury resulting from being struck by an automobile, while the allegations in the Complaint show that the Plaintiff was injured by an agency other than an automobile, to wit: a piece of timber.'

The demurrer to the complaint was heard by the Honorable Charles M. Pace, Judge of the Spartanburg County Court. He overruled the demurrer and held that the complaint stated facts sufficient to constitute a cause of action. This appeal is from the order overruling the demurrer and raises the single question of whether the injury received by the respondent was the result of being struck by an automobile, when the allegations of the complaint show that a piece of timber was thrown against the leg of the respondent by the spinning wheels of an automobile wrecker.

It is elementary that in passing upon a demurrer, the Court is limited to a consideration of the pleadings under attack, all of the factual allegations whereof that are properly pleaded, are for the purpose of such consideration deemed admitted. Warr v. Carolina Power & Light Co., 237 S.C. 121, 115 S.E.2d 799.

It is a well settled rule that the terms of an insurance policy must be construed most liberally in favor of the insured and where the words of a policy are ambiguous, or where they are capable of two reasonable interpretations, that construction will be adopted which is most favorable to the insured. Pitts v. Glen Falls Indemnity Company, 222 S.C. 133, 72 S.E.2d 174. However, in cases where there is no ambiguity, contracts of insurance, like other contracts, must be construed according to the terms which the parties have used, to be taken and understood in their plain, ordinary and popular sense. If the intention of the parties is clear, the Courts have no authority to change the contract in any particular. The Court has no power to interpolate into the agreement between the insurer and the insured a condition or stipulation not contemplated either by the law or by the contract between the parties. Chastain v. United Ins. Co., 230 S.C. 465, 96 S.E.2d 464.

Even though the policy of insurance here involved is not before us, the complaint shows that it contained a limitation of coverage to injury received when 'struck by an automobile.' The complaint further shows that the respondent was struck by a piece of timber which was thrown against his leg by the revolving wheel of an automobile wrecker, thereby breaking his leg, with resulting medical expenses for the treatment of such injury.

A review of the decisions of the Courts, which have passed upon a policy provision, such as was contained in the policy here involved, and under comparable facts, reveals a difference of opinion as to the proper meaning and coverage of the insurance contract.

In the case of Maness v. Life & Casualty Ins. Co. of Tennessee, 161 Tenn. 41, 28 S.W.2d 339, a recovery for injury to an insured when struck by a rock or some other hard substance thrown by the wheels of a passing automobile, was allowed. A like conclusion was reached in the case of Gilbert v. Life & Casualty Ins. Co. of Tenn., 185 Ark. 256, 46 S.W.2d 807, where the policy insured against accident resulting from being struck by a vehicle propelled by gasoline, while the insured was helping pull stumps and was killed from the lash of a cable attached to a tractor when the cable slipped from a stump.

In the case of Gant v. Provident Life & Accident Ins. Co., 197 N.C. 122, 147 S.E. 740, 741, the facts were practically identical as those alleged in the complaint in this case. The Supreme Court of North Carolina denied coverage under a policy providing for indemnity for injuries sustained by being struck by a moving automobile. The evidence, in the cited case, showed that the plaintiff was struck by a plank which was thrown against her leg by the revolving wheel of an automobile, thereby causing her serious bodily injury. At the time the plaintiff was struck by the plank, she was standing in the yard of her home, a distance of twelve or fifteen feet in the rear of the automobile. No part of the automobile struck or came in contact with her person. From a judgment in favor of the plaintiff, the insurance company appealed to the Supreme Court of North Carolina. The sole question for determination was whether the bodily injury to the plaintiff was the result of being struck struck by a moving automobile. The Supreme Court of North Carolina reversed the decision of the lower Court, saying:

'There was no evidence at the trial tending to show that plaintiff in fact was struck by a moving automobile, and thereby injured; all the evidence tended to show that she was struck by a plank. Can the language of the policy be so construed by the court that it may be held, upon all the evidence, as a matter of law, that plaintiff was struck by a moving automobile, because the evidence shows that she was struck by a plank which was thrown against her by the revolving wheel of an automobile?

'If the language of the policy is uncertain or ambiguous, and is susceptible to more than one construction, the court will adopt and apply that construction which is most favorable to the insured. If, however, there is no uncertainty or ambiguity in the language of the policy, there is no occasion for judicial construction; the rights and liabilities of the parties must be determined in accordance with the plain, ordinary, and popular sense of the language which they have used in their contract. Penn v. Insurance Co., 158 N.C. 29, 73 S.E. 99, 42 L.R.A. (N.S.) 593.

'In the instant case, the liability of the defendant under the policy which plaintiff accepted is expressly limited by language which is free from uncertainty or ambiguity. This language, therefore, cannot be so construed as to enlarge defendant's liability, in order that plaintiff may recover upon the facts shown by the evidence. As there was no evidence from which the jury could find that plaintiff was injured by 'being struck by a moving automobile,' we must hold that there was error in the refusal of the court to allow defendant's motion, at the close of the evidence, that the action be dismissed as upon nonsuit.'

In the case of Harley v. Life & Casualty Ins. Co. of Tennessee, 40 Ga.App. 171, 149 S.E. 76, it appears that the plaintiff, while walking along a sidewalk in the City of Atlanta, was struck in the eye by a flying nut that became detached from and was thrown by a passing automobile, resulting in the loss of the sight thereof. The Georgia Court, in affirming a nonsuit granted by the lower Court, said:

'The provision of the policy of insurance applicable to this case is as follows: 'If the insured be struck, or knocked down, or run over * * * by a vehicle propelled by steam, * * * gasoline,' etc. The insured was protected by his policy if struck, knocked down, or run over by an automobile. A nut, flying off of an automobile, is not an automobile or a substantial portion thereof. See, in this connection, Great Eastern Casualty Co. v. Blackwelder, 21 Ga.App. 586, 94 S.E. 843.'

In Appleman on Insurance Law and Practice, Vol. I, section 572, at page 701, it is said:

'One case, following the reasoning of such decisions as we have examined, held that where a stone was thrown by a passing car and struck the insured he was 'struck by an automobile' within the meaning of the contract. The majority of cases are to the contrary and have denied recovery where the insured was struck by a plank thrown by a passing car, by a nut flying off automobile, and even where the insured was struck by wire around the ends of pipes projecting from the back of a truck.'

In the case of Johnston v. Maryland Casualty Co., 22 Wash.2d 305, 155 P.2d 806, 808, it was held that a truck operator, who was still in the truck after collision with a passenger automobile, and never had any personal contact with the automobile, was not 'struck by an automobile' within the meaning of an automobile accident policy insuring against injury by being struck by an automobile. See also the case of Eynon v. Continental Life Ins. Co. of Missouri, 252 Mich. 279, 233 N.W. 228, and 29A Am.Jur., section 1242, page 382.

The respondent was not 'struck by an automobile' within the meaning of the policy here...