Sherman v. New York Cas. Co.

Decision Date20 July 1951
Docket NumberNo. 9198,9198
Citation78 R.I. 393,39 A.L.R.2d 947,82 A.2d 839
Parties, 39 A.L.R.2d 947 SHERMAN v. NEW YORK CASUALTY CO. Ex.
CourtRhode Island Supreme Court

Walter H. Sharkey, Woonsocket, for plaintiff.

Hinckley, Allen, Salisbury & Parsons and Matthew W. Goring and Thomas J. Hogan, Providence, for defendant.

CONDON, Justice.

This is an action of assumpsit which was tried before a justice of the superior court without a jury and resulted in a decision for the defendant. Plaintiff excepted to such decision and has brought the case here by his bill of exceptions containing only that exception.

The action is based on an agreement in an accident insurance policy wherein the defendant promised 'To pay to or for each person who sustains bodily injury, caused by accident and arising out of the use of the automobile classified as 'pleasure and business,' while in or upon, entering or alighting from the automobile while the automobile is used by or with the permission of the named insured, the reasonable expense of necessary medical, surgical, ambulance, hospital and professional nursing services and, in the event of death resulting from such injury, the reasonable funeral expense, all incurred within one year from the date of accident.'

On June 27, 1947 while the policy was in force plaintiff was injured in the following manner. On that day he drove his car to a place of business and parked it in a shedlike open-sided structure in a nearby parking lot. Opposite the open side of such structure was a stone wall about two or three free high and possibly 25 feet or more away from the shed. The car was so parked that the left front door could not be opened because of its nearness to a pole which supported the roof of the shed. Because of that obstruction plaintiff, in order to get out, slid across the front seat and left the car by the right front door. In doing so he thinks he may have inadvertently released the parking brake. After he had gotten out and had walked to the end of the car he noticed it was rolling backward toward the stone wall. He placed his hands upon the car in an effort to stop it but he was forced backward. However, he held on to the car by the tail-light with his right hand and by the registration plate with his left hand and then he put his knee on the bumper as the car continued to roll back toward the wall. When it finally crashed into the wall he was in such a hazardous position that both of his legs were broken by the impact. If liability is established there is no question that the damages for plaintiff's injuries exceeded the limit of the policy.

The trial justice found that the accident had occurred while the car was 'being used' by plaintiff but not while he was 'upon' it or 'alighting' therefrom. In the course of his decision he construed the words of the policy, 'while in or upon' the car as not limited to 'within' it, but as extended to include standing upon a bumper or a fender. Apparently his construction did not comprehend a situation where the insured was partly on the car and partly on the ground because he found that since plaintiff was not actually on the bumper he did not come within the coverage of the policy.

Plaintiff contends that such decision is against the law and the evidence and the weight thereof. In arguing that contention he makes two points: first, that the trial justice misinterpreted the evidence of plaintiff's position on the car at the time of the accident; and second, that as a matter of law he construed the words of the policy 'while in or upon' the car too narrowly. In support of the first point he emphasizes that the evidence is uncontradicted and shows that he was kneeling on the bumper when the car rolled against the wall. On the second point he claims that the authorities favor a more liberal construction of the policy than that given by the trial justice.

In considering plaintiff's argument on the first point we have carefully read the transcript and we do not find that the evidence is entirely clear as to whether plaintiff was actually kneeling on the bumper or merely had his knee or knees against it at the time of the accident. The obscurity arises from a seeming inconsistency and indefiniteness in the plaintiff's own testimony. He was the only witness to the accident. From his direct and cross-examination we think it is fair to say that it does not appear that he was in fact kneeling on the bumper. On his redirect examination he is more explicit and does say at one point that his feet were on the bumper before the car crashed into the wall. But the whole of his testimony leaves it open to doubt whether he was actually kneeling on the bumper, or whether he merely had his knee or knees against it in an effort to hold back the car from hitting the wall. The best that can be said in plaintiff's behalf is that his testimony is open to two reasonable and different interpretations.

The trial justice's interpretation was to the effect that the plaintiff's testimony was not clear 'whether in trying to stop the car, he was on the car or not. Judging by his injuries and the appearance of the place, and placing the most favorable construction upon what he said, it is the firm conviction of this Court that he was not on that bumper; that he was still trying to stop the car and that the car pushed him against that stone wall and injured him.' In our opinion that is a reasonable conclusion from the evidence, and therefore we cannot say that the trial justice's finding that plaintiff was not on the bumper was clearly wrong.

This brings us to the plaintiff's second point which concerns the reasonable construction of the language of the policy which is in issue here. The trial justice construed it to mean that plaintiff was not required to have been within the car when he was injured but apparently held that he must have been actually and wholly on the car in the sense of being entirely off the ground. We do not agree with this construction.

The particular words 'in or upon' should be given a broad and liberal construction consistent with the context of the whole clause in which they appear. The key words in that clause are 'arising out of the use of the automobile' and 'while the automobile is used * * *.' If the expression 'in or upon' is read in connection with those words we think it will reasonably appear that it was intended to make the policy applicable to injuries sustained by reason of the immediate and substantial contact of a part of plaintiff's body with the car in the course of actively promoting or serving such use. In that sense the plaintiff here was 'upon' the car when he placed his hands and knees upon it for the purpose of trying to stop it from rolling into the wall.

Another reasonable construction admittedly can be given to the expression 'in or upon' but it is unfavorable to the insured. Since the language employed by the insurer to express its intention admits of two reasonable constructions it is to that extent ambiguous. In such a situation the rule is...

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