Stewart v. North American Acc. Ins. Co.

• Decision Date: 06 January 1931
• Docket Number: No. 21413.,21413.
• Citation: 33 S.W.2d 1005
• Court: Missouri Court of Appeals
• Parties: STEWART v. NORTH AMERICAN ACC. INS. CO.

33 S.W.2d 1005

STEWART v. NORTH AMERICAN ACC. INS. CO.

No. 21413.

St. Louis Court of Appeals. Missouri.

January 6, 1931.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

"Not to be officially published."

Action by Hazel F. Stewart, a minor, by John A. Stewart, her curator, against the North American Accident Insurance Company, a corporation. Judgment for plaintiff, and defendant appeals.

Affirmed.

Frank A. Zeis and J. E. Patton, both of St. Louis, for appellant.

Jesse L. Renderer and N. Murry Edwards, both of St. Louis, for respondent.

BENNICK, C.

This is an action upon a policy of accident insurance, issued on February 4, 1929, by defendant, the North American Accident Insurance Company, through the St. Louis Times. The insured was Clarence M. Stewart, who was eighteen years of age at the time of the issuance of the policy. Plaintiff, a sister of the insured, and an infant five years of age, sues as beneficiary through John A. Stewart, her father, who was duly appointed curator of her estate by the probate court of the city of St. Louis, on August 13, 1929.

The policy provided insurance in the sum of $1,000, for a period of one year, against death "resulting directly, independently and exclusively of all other causes from bodily injuries effected solely through external, violent and accidental means," as "by the wrecking or disablement of a private automobile of the exclusively pleasure type, * * * in which the insured is riding or driving."

On July 19, 1929, the insured, in company with three other boys, was driving in a Ford roadster on a country road near Crocker, Mo. One of the boys was driving the car; another was seated alongside of him in the seat; the third boy was standing on the left running board; and the insured was standing on the right running board. The car was traveling at a speed of about twenty miles an hour when it struck a rock in the road, causing the insured to be thrown forward in front of the automobile for a distance of six or eight feet, and to be run over by the right front wheel.

Defendant admitted at the trial that the automobile ran over the insured; that there was evidence of external violent injury after the accident; and that, from the injuries so received, the insured died on August 2, 1929.

The evidence showed further that, as a result of the collision, one or more of the tires was flat; that the radius rod was bent, and the steering gear sprung; and that the car could not be driven under its own power until the floor boards were removed, and the clutch adjusted.

There was no dispute about the fact that the premium on the policy was fully paid, and that the policy was in full force and effect at the time of the death of the insured.

Shortly following the accident, notice of claim under the policy was given; and after negotiations, conducted in part with defendant directly, and in part through the St. Louis Times, defendant, on August 24, 1929, wrote the father of plaintiff, denying liability upon the theory that "the assured was not in the car," but "fell from the running board of the car."

The petition alleged the appointment of John A. Stewart as curator of plaintiff's estate; the issuance of the policy; the death of the insured in a manner covered by the policy; demand upon defendant for payment; and defendant's vexatious refusal to pay.

The answer filed was a general denial.

Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendant, for $1,000, the face value of the policy, with interest thereon amounting to $42.50, together with the statutory 10 per cent. penalty and the sum of $400 as attorney's fees by way of vexatious refusal. Judgment was rendered for plaintiff in the aggregate sum of $1,546.75; and following the overruling of its motion for a new trial, defendant has duly appealed.

A matter of first insistence is the point made by defendant that its requested peremptory instruction in the nature of a demurrer to all the evidence should have been given.

It will be recalled that there was no dispute about the manner in which, or the cause from which, the insured came to his death; or that there was evidence of external violent injury immediately following the accident; or that the accident resulted through the disablement of a private automobile of the exclusively pleasure type. Consequently the controversy is narrowed down to the point of whether the location of the insured upon the running board, rather than inside the body proper, took the case from within the coverage of the policy; or, in other words, whether the clause, "in which the insured is riding or driving," is broad enough to cover the facts of the case, or whether, to the contrary, it contemplated a liability only in the event that the death of the insured occurred while he was occupying the place in an automobile where the driver or a passenger is ordinarily accustomed to sit.

As to this, defendant argues that it is clear from the context of such provision that it contracted to pay for the death of the insured while he was riding or driving in an automobile; that while driving an automobile, the insured would of necessity be required to be inside the same, and that, as the words "riding" and "driving" are joined by the conjunction "or," it is clearly indicated that the contract did not contemplate a liability in the event that the insured should be riding on the running board, or on any other portion of the car not designed for the occupancy of passengers; that it is a matter of common knowledge that to ride outside the body proper, as on the running board, greatly increases the risk or hazard; and that the provision of the policy in question clearly shows by its terms that it was not in the contemplation of the contracting parties that protection should be afforded against such increased risks.

Plaintiff argues, of course, that the prepositions "in" and "on" are used interchangeably in insurance parlance, absent any plainly expressed qualification or limitation; and that the policy in suit consequently covered the manner in which the insured came to his death, even though it is true that he was standing on the running board, and was not inside the car at a place primarily designed for the use of passengers while the same is in motion.

While defendant's argument is predicated almost wholly upon the theory of increased risk, the idea being that the policy was never intended to cover an accident unless the insured was at the time within the automobile or inclosed by the space devoted to or set apart for the use of persons or passengers, yet it is obvious that the policy itself provided no such limitation, unless it be that the use of the single preposition "in" necessarily carried that implication. The policy might very well have included a positive and unequivocal condition against riding in forbidden places, plainly exempting from its scope and coverage all accidents resulting from breaches thereof, and it might have been the part of prudence for the company to have drawn the contract in that fashion, but nevertheless the fact remains that it did not do so, unless, as we have already indicated, the use of the preposition "in" conclusively permits of no other interpretation.

Now it would be folly to say that "in" and "on" have exactly the same meaning under any and all circumstances, and yet, when reference is made in ordinary conversation to the location of persons under facts similar to those involved in the case at bar, the two prepositions are often used interchangeably. One might say that he came either "in a train" or "on a train," without intending in any wise to indicate by either form of expression the particular place in the train that he occupied. Similarly, if the insured had been so fortunate as to have reached his destination, and some one had asked him how he came, he would doubtless have answered that he came "in an automobile," without intending in any way to conceal the fact that he rode on the running board rather than in the seat. That in ordinary acceptation the preposition "in" is interchangeable with "on," when used in the sense of the illustrations we have given, has been pointedly recognized and held in this state. Schmohl v. Travelers'...