Seeley v. Pilot Fire & Cas. Co.

• Decision Date: 15 August 1968
• Citation: 222 Tenn. 33,432 S.W.2d 58,26 McCanless 33
• Court: Tennessee Supreme Court
• Parties: , 222 Tenn. 33 Herman J. SEELEY, Plaintiff, v. PILOT FIRE & CASUALTY COMPANY, Defendant.

Page 58

432 S.W.2d 58

26 McCanless 33, 222 Tenn. 33

Herman J. SEELEY, Plaintiff, v. PILOT FIRE & CASUALTY COMPANY, Defendant.

Supreme Court of Tennessee.

Aug. 15, 1968.

Bernie Mullikin, Jr., Memphis, for plaintiff in error, Cochran, Carey, Fleischer & Mullikin, Memphis, of counsel.

Frierson M. Graves, Jr., Memphis, for defendant in error, Heiskell, Donelson, Adams, Williams & Wall, Memphis, of counsel.

OPINION

JAMES D. SENTER, Jr., Special Judge.

This suit originated in the Circuit Court of Shelby County, Tennessee. We are referring to the parties according to their status below; that is, Herman J. Seeley as plaintiff, and Pilot Fire & Casualty Company as defendant. Plaintiff seeks to recover from defendant certain medical expenses incurred by him in the amount of $700.00 pursuant to a certain Family Combination Automobile Policy issued to plaintiff by defendant; and to recover the statutory penalty for refusal to pay. The trial court sustained defendant's demurrer to the amended declaration, and plaintiff appealed.

Of the three Assignments of Error filed by plaintiff, the first two raise the question that the demurrer was waived by an advance step in the pleadings and that the subject demurrer is not a credible pleading. It is therefore appropriate to review the pleadings, both the sequence and format.

To the original declaration defendant filed a demurrer which states briefly that the declaration is not sufficient in law because it does not allege an injury 'caused by accident' and there is no coverage within the terms of the policy. Plaintiff then obtained leave to amend his declaration, the amended declaration describing with more specificness how plaintiff was injured. To the amended declaration defendant filed a pleading entitled 'DEMURRER AND ANSWER TO DECLARATION AS AMENDED'. The first portion of the conjoined pleading constitutes a demurrer and the latter portion an answer. It is filed as one document. The plaintiff thereupon filed a replication to the demurrer and answer and joined issue thereon. The court sustained the demurrer to the amended declaration and dismissed the suit. In this Order it is recited that 'This cause came on to be heard on the Demurrer to the Declaration as Amended, upon statement of counsel, Memorandum Brief submitted and upon the entire record,--'. The transcript contains a 'Memorandum on Demurrer of Defendant' filed by counsel for plaintiff.

The first two Assignments charge that the Court erred:

'1. In not overruling the demurrer in that at law a demurrer cannot be pleaded at the same time as a plea to the merits, the advance step in pleading having the effect of waiving and overruling the demurrer.

2. In not overruling the demurrer as there is no credible pleadings to sustain such a ruling.'

By his first Assignment plaintiff insists that since the answer of defendant was filed simultaneously with his demurrer, both being incorporated in the one document of pleading, this constituted an advance step in pleading and effectively waived the demurrer.

'This is the order of pleading existing at the common law, and it should be observed because an advance step in pleading waives all defenses which should be antecedently made.' Caruthers History of a Lawsuit, 7th Ed. P. 210, Sec. 169.

We agree that this is the recognized rule in Tennessee, and had the plaintiff raised this question in the court below we assume that the trial court would have sustained his position. However, we also think that the right to raise this defense to the demurrer can be waived, as can the right to question the regularity of any other pleading. (Wilson v. Eifler, 47 Tenn. 31). A review of this Record has convinced us that the question of advance pleading was not raised in the court below. The only written response to the demurrer and the amended declaration is the replication filed by plaintiff on May 23, 1967. On the same day plaintiff filed a 'Memorandum on Demurrer of Defendant'. This is a Brief containing citations of authorities and argument on the matters raised by the demurrer. This Memorandum was, seemingly without objection, included in the transcript.

On May 26, 1968, the demurrer was heard by the trial judge 'upon statement of counsel, Memorandum Brief submitted and upon the entire record'. The Memorandum Brief nowhere suggests that the demurrer is being challenged because filed with an answer, but does argue in detail the legal questions raised by the demurrer. We think it is clear that the trial court was led or permitted to assume that the technical question was being waived and that both parties were amenable to a disposition of the demurrer upon its merits. In this situation the following statement should govern:

'The reason for the rule is that a party shall not allow the trial court to fall into error inadverdantly, but to require that the attention of the court be specifically directed to the exact point involved.' Caruthers History of a Lawsuit. 8th Ed. Sec. 205, P. 252.

Our conclusions apply also to the second Assignment of Error and it results that the first two Assignments are overruled.

The first Assignment of Error contends that the court erred in sustaining the demurrer since the allegations in the declaration set out a question of fact as to whether or not the injuries were 'caused by accident' within the meaning of the automobile insurance policy.

The amended declaration alleges in so many words that the injuries received by plaintiff were 'caused by accident' and alleges that the plaintiff received a lumbar strain as he was entering his pickup truck. It further alleges that the medical expenses 'were incurred by treatment of injuries arising out of an accident which occurred on January 3, 1967 when the plaintiff was entering and occupying said vehicle and in entering his vehicle, he stepped from the ground into the vehicle without stepping on the running board, in this manner twisting his back which resulted in his being hospitalized and incurring the approximate sum of $700.00 in medical expenses.' The insurance policy that is the subject of this suit is reproduced in full in the transcript. The pertient provisions of this policy as set forth in the declaration of plaintiff are as follows:

'To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, x-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services.

Division 1. To or for named insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury', caused by accident (a) while occupying the owner automobile etc. * * *'

Definitions: Occupying means in or upon, or entering, or alighting from.'

Since the policy defines occupying as meaning 'in or upon, or entering or alighting from' such vehicle, the only question is whether or not, as a matter of law, the allegations in the declaration sufficiently allege that the injury was caused by accident. The word 'accident' is not defined in the policy. We must therefore determine whether or not an injury resulting from a person twisting his back while stepping from the ground into a vehicle without using the intermediate platform of the running board can be described as an injury caused by accident under the terms of the policy.

In seeking to find the intention of the parties to a contract, words in the contract, unless otherwise defined, will be given their usual and ordinary meaning. Hahn v. Home Life Insurance Company, 169 Tenn. 232, 237, 84 S.W.2d 361; Pacific Mutual Life Insurance Company v. Hobbs, 168 Tenn. 690, 80 S.W.2d 662, 663. In this policy the key words are '* * * who sustains bodily injury * * * caused by accident', and the question is how the insurer and the insured should reasonably have interpreted and understood these words, giving them their ordinary meaning.

We find no case in Tennessee defining these particular words in the context of the medical coverage provisions of an automobile liability policy. There are a number of decisions, however, in cases which required a definition and construction of the language frequently used in general accident insurance policies and which provide payment or indemnity for bodily injury or death Resulting solely through external, violent, and accidental means. It will be noted that in these cases the emphasis is placed on the words 'accidental means', rather than on the words 'violent' and 'external'. In view of the basic similarity of facts, the conclusions and decisions in those cases can be guiding beacons in this case, if we can equate the words 'bodily injury * * * caused by accident' with the words 'bodily injury * * * resulting through * *...