Southall v. Farm Bureau Mut. Ins. Co. of Arkansas, 82-42

• Decision Date: 10 May 1982
• Docket Number: No. 82-42,82-42
• Citation: 632 S.W.2d 420,276 Ark. 58
• Parties: James SOUTHALL, Appellant, v. FARM BUREAU MUTUAL INSURANCE COMPANY OF ARKANSAS, Appellee.
• Court: Arkansas Supreme Court

Page 420

632 S.W.2d 420

276 Ark. 58

James SOUTHALL, Appellant, v. FARM BUREAU MUTUAL INSURANCE COMPANY OF ARKANSAS, Appellee.

No. 82-42.

Supreme Court of Arkansas.

May 10, 1982.

Miller, Jones & Goldman, P. A., Hot Springs, and Cliff Jackson, P. A., Little Rock, for appellant.

Laser, Sharp & Huckabay, P. A., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

This suit was tried in the court below as a test case to determine whether an insurance policy covering loss caused by hail includes loss caused by sleet. The Court of Appeals certified the case to us as presenting an issue of public interest, because a number of other pending cases may be affected by the decision. Rule 29(4)(b).

The plaintiff Southall, the insured, introduced proof to show that on January 11, 1978, sleet fell all day long and into the night. The next morning Southall found that the accumulation of about four inches of sleet on top of his chicken house had caused it to collapse. In this suit upon the policy the court instructed the jury that the term "hail" as used in the policy should be given the meaning ordinarily applied to that term in the everyday affairs of life. The jury's verdict was for the insurance company.

The extended-coverage section in the policy provides that "the coverage of this policy is extended to include direct loss by ... hail ...." Later in the same section is this limitation: "Provisions Applicable Only to Windstorm and Hail: This Company shall not be liable for loss caused directly or indirectly by (a) frost or cold weather or (b) ice (other than hail) ...."

At the trial there was undisputed testimony that the word "hail" includes large hail, small hail, winter hail, and sleet. A witness employed by the Weather Service testified that hail is so defined in a recognized meteorological dictionary. Webster's Second New International Dictionary (1939) is to the same effect, subdividing hail into summer hail and winter hail. In a case directly in point it was held that a policy covering loss by hail includes loss by sleet. Evana Plantation v. Yorkshire Ins. Co., 214 Miss. 321, 58 So.2d 797 (1952). No case to the contrary is cited. In fact, at the trial the appellee's vice-president conceded on the witness stand that the sleet on the roof of the plaintiff's chicken house was small hail.

The trial court was in error in instructing the jury that the term "hail" was to be given its everyday meaning. An insurance policy is to be construed strictly against the insurer, who chooses its language. The construction and legal effect of written contracts are matters to be determined by the court, not by the jury, except when the meaning of the language depends upon disputed extrinsic evidence. Ark. Rock & Gravel Co. v. Chris-T-Emulsion, 259 Ark. 807, 536 S.W.2d 724 (1976); Security Ins. Co. v. Owen, 252 Ark. 720, 480 S.W.2d 558 (1972). In the interpretation of a contract negotiated between individuals no doubt there might be conflicting testimony presenting an issue of credibility for the jury with respect to the meaning of the language used, but there was no such issue in this case. The court should, if appropriate, have instructed the jury that the word "hail" as used in the policy included sleet.

The appellee's vice-president testified that he construed a "direct loss" by hail to mean only the damage caused by the initial impact of the hail, but we have...