Stix v. Travelers' Indemnity Co.

• Decision Date: 03 June 1913
• Citation: 157 S.W. 870
• Parties: STIX v. TRAVELERS' INDEMNITY CO. OF HARTFORD, CONN.
• Court: Missouri Court of Appeals

157 S.W. 870

STIX v. TRAVELERS' INDEMNITY CO. OF HARTFORD, CONN.

St. Louis Court of Appeals. Missouri.

June 3, 1913.

1. INSURANCE (§ 424) — CONTRACT — CONSTRUCTION.

An automobile, insured against damages caused solely by collision with another object, the policy excluding damages from striking any portion of the roadbed, on being driven down a roadway skidded so that the rear wheels were thrust across a granitoid guttering 20 inches wide and 3 inches deep, adjacent to the roadway, and thence across a level grass plat adjoining, 2 feet wide, where it collided with a granitoid sidewalk, which was 6 inches above the grass plat, causing damages. Held, the guttering and sidewalk were not a portion of the roadbed within the meaning of the policy.

2. INSURANCE (§ 146) — CONTRACT — CONSTRUCTION.

Ambiguous language in an insurance contract is to be construed against the insurance company who incorporated it, to the end of effectuating the insurance and protecting the insured.

3. INSURANCE (§ 669) — PROPERTY — DAMAGE TO AUTOMOBILE — LIMITATION OF LIABILITY.

Where an insurance policy against damage to an automobile provided that from the amount of each claim, when determined, the sum of $25 should be deducted and the company should be liable only for the sum in excess thereof, and the language, considered in light of the policy as a whole, showed a clear intent to restrict the liability in that sum, it was error to give an instruction authorizing a recovery for the full amount of the damages inflicted; defendant being entitled to the reduction.

4. APPEAL AND ERROR (§ 1140) — EXCESSIVE VERDICT — REMITTITUR.

Where, under the policy of insurance sued on, defendant was entitled to have $25 deducted from its liability when determined, and the jury under an erroneous instruction returned a verdict

for the full liability, a remittitur may be allowed to prevent reversal on appeal.

5. INSURANCE (§ 602) — FAILURE TO PAY CLAIM — ALLOWANCE FOR VEXATIOUS DELAY.

Where suit was brought against an insurance company on a policy of insurance, and the jury in its award allowed plaintiff $500 as attorney's fee for vexatious delay, under Rev. St. 1909, § 7068, without any direct and positive evidence showing vexatious delay, there was no error, since the jury had a right to find the delay vexatious from all the circumstances of the case, such as the validity of plaintiff's claim, refusal of defendant to pay, and the necessity for suit.

Appeal from Circuit Court, Montgomery County; James D. Barnett, Judge.

Action by William A. Stix against the Travelers' Indemnity Company of Hartford, Connecticut. Judgment for the plaintiff, and defendant appeals. Affirmed on condition that remittitur be filed.

Watts, Gentry & Lee, of St. Louis, for appellant. Barclay, Fauntleroy & Cullen, of St. Louis, and H. W. Johnson and Nowlin & Hughes, all of Montgomery City, for respondent.

NORTONI, J.

This is a suit on a policy of insurance against loss or damage to an automobile caused solely by collision with another object. Plaintiff recovered, and defendant prosecutes the appeal.

By the terms of the policy, loss or damage caused by striking any portion of the roadbed is excluded from the risk to be compensated, and the question for consideration concerns the interpretation of this clause of the policy.

The court instructed the jury that the guttering adjacent to the roadway and the sidewalk beyond with which the automobile collided were not a portion of the "roadbed."

It appears plaintiff's automobile in charge of a chauffeur slipped or skidded while descending a hill in Forest Park in St. Louis and became unmanageable. The machine was moving at a rapid rate of speed and slipped or skidded so as to thrust the rear wheels across the guttering next adjacent to the roadway and across a grass plat two feet wide between the guttering and the sidewalk, where the rear wheel collided with the granitoid sidewalk. The granitoid sidewalk is about six inches higher than the surface of the earth, and it appears the collision of the rear wheel of the automobile with it occasioned the complete reversal of the position of the machine; that is, it headed about, jumped over the sidewalk, and overturned backwards, falling across the gutter and upon the roadbed. The evidence tends to prove, and from the finding of the jury it appears, that the collision with the sidewalk operated as the proximate cause of the damage done to the machine. The roadway is constructed through Forest Park at the point in question with granitoid guttering adjacent on either side; but no perpendicular curb, as is usual on the side of a city street, is there maintained. The guttering is shown to be about 20 inches in width and slopes as a semicircle from and on a level with the sides of the roadway to the center of the gutter, whence it raises toward the grass plat and sidewalk. It is said that the center of the gutter is but two or three inches lower than its sides. Immediately outside of the gutter and adjacent thereto is a grass plat two feet in width, and adjacent to this is the granitoid sidewalk which rises six inches above the surface of the grass plat. The evidence tends to prove that, upon the automobile skidding, the rear wheels slid over and across the guttering, ploughed a hole in the grass plat, and collided with the sidewalk with such force as to tear the tires from the rear wheels and occasion the machine to right about, jump over the walk, rear up, and fall over across the gutter and upon the roadbed.

The policy sued upon vouchsafes insurance against loss or damage to the automobile, including its operating equipment while attached thereto, if such damage is "caused solely by collision with another object (excluding, however, * * * all loss or damage caused by striking any portion of the roadbed). * * *" While the evidence is almost conclusive that the proximate cause of the damage was the collision of the rear wheels of the automobile with the sidewalk, there is a strong inference arising therefrom to the effect that the tires might have been dissevered from the wheels through sliding across the granitoid gutter, and because of this it is urged the court erred in instructing the jury that the gutter constituted no part of the roadbed. In the concluding lines of the principal instruction given for plaintiff, the court...