Sears v. The Pacific Mutual Life Insurance Company of California

• Decision Date: 12 March 1921
• Docket Number: 22,813
• Citation: 196 P. 235,108 Kan. 516
• Parties: VIOLET SEARS, Appellee, v. THE PACIFIC MUTUAL LIFE INSURANCE COMPANY OF CALIFORNIA, Appellant
• Court: Kansas Supreme Court

196 P. 235

108 Kan. 516

VIOLET SEARS, Appellee, v. THE PACIFIC MUTUAL LIFE INSURANCE COMPANY OF CALIFORNIA, Appellant

No. 22,813

Supreme Court of Kansas

March 12, 1921

Decided January, 1921.

Appeal from Atchison district court; WM. A. JACKSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ACCIDENT INSURANCE--Specific Exceptions in Policy as to Liability--Burden of Proof. Where an accident insurance company seeks to avoid liability because of a specific exception to its general liability under the terms of its policy, and on the ground that the accident and injury were within such exception, the burden of proof rests upon the insurance company to show that the facts of the case fell within the exception clause in the policy which relieved the company from liability.

2. SAME--Automobile Accident--Ability of Automobile "to Proceed Under Its Own Power." In an accident insurance policy which provided that the insurer would not be liable for an injury occurring in an automobile accident if the automobile were able to proceed under its own power after the accident, the fair and reasonable interpretation of such exception clause is that the automobile should be able to continue to move in practically the same manner and under the same conditions as existed before the accident, without help or repairs, and with reasonable safety to the occupants and without further damage to the machine itself by its continued operation.

James W. Orr, C. J. Conlon, and E. W. Clausen, all of Atchison, for the appellant.

T. A Moxcey, of Atchison, for the appellee.

OPINION

DAWSON, J.:

This is an action on a policy of accident insurance.

Plaintiff was the named beneficiary of a policy of insurance issued by defendant to plaintiff's son who was killed in an automobile accident; and the main question involved in this appeal turns on the proper significance to be given to a clause in the policy which provided that the defendant would only be liable if the accident and injuries occurred to the insured--

"While actually riding in any private automobile, provided that the insured shall not then be a hired driver thereof, and the injuries are received in consequence of an accident to the conveyance which renders it unable to proceed under its own power."

The defense was that after the accident the automobile was able to proceed under its own power, and consequently there was no liability.

The evidence showed that in the accident wherein the insured met his death the automobile, a Ford car, was thrown on its side on the highway about four o'clock a. m., before daylight; that the radiator was "all busted," the hose torn loose from the radiator and no water circulation and the radiator leaking, the iron hose connection cracked, the engine and fenders mashed, the wind shield broken, both lights destroyed, and the right rear tire blown up and partly off, part of the oil spilled, the radius rod bent, and the top destroyed. One witness testified:

"The first thing we did was to set it on its wheels. I seen it would be impossible to bring the car home in that condition without making repairs on the radiator connection and cylinder oil in the engine and had to go to Nortonville to get repairs and oil.

"We straightened the radius rod before undertook to drive. There was also an iron hose connection cracked which had to be replaced. We had to put on a new radiator. Whole top broken in and rather than try to repair it I bought a new one. Ground at point of accident showed car plowed ground in the turn over. After roadside repairs it did not hold water but had to be refilled on way to Nortonville. The lights were broken. If one would try to run car without water it would finally stick. The car would be injured to some extent even before it would stick. The purpose in making the minor repairs was to make it possible to bring the car to Nortonville without ruining it. There was less than a quart of oil in it. The Ford has a splash system and when there is only one quart of oil in it, it will not splash. It would have been dangerous to have tried to run the car without straightening the radius rod. Could not keep it in the road."

Certain expert mechanics testified that a...