Stix v. Travelers Indemnity Company of Hartford, Connecticut

• Decision Date: 03 June 1913
• Citation: 157 S.W. 870,175 Mo.App. 171
• Parties: WILLIAM A. STIX, Respondent, v. TRAVELERS INDEMNITY COMPANY of Hartford, Connecticut, Appellant
• Court: Missouri Court of Appeals

157 S.W. 870

175 Mo.App. 171

WILLIAM A. STIX, Respondent, v. TRAVELERS INDEMNITY COMPANY of Hartford, Connecticut, Appellant

Court of Appeals of Missouri, St. Louis

June 3, 1913

Appeal from Montgomery Circuit Court.--Hon. James Barnett, Judge.

Judgment affirmed.

Watts Gentry & Lee for appellant.

(1) The court erred in overruling the demurrer to the evidence because it appears, from the testimony offered by plaintiff (which was all the testimony on that subject), that the injury to the machine resulted from collision of the machine with the gutter and roadbed, the gutter being a part of the roadbed within the meaning of the law; therefore the damage to plaintiff's machine was not covered by the policy in this case, which expressly excluded damages resulting from collision with any part of the roadbed. Plaintiff alleged that the machine was damaged by coming in contact with an object which was no part of the roadbed. His proof shows just the contrary, and there was, therefore, a total failure of proof of the material allegations of the petition. (2) The court erred in giving instruction numbered 2 at the request of plaintiff: (a) Because it permits recovery for an element of damages for which plaintiff is not entitled to recover and therefore permits an excessive verdict. (b) The instruction misdirected the jury by telling them, as a matter of law that the granitoid gutter was not a part of the roadbed. Warren v. Henley, 31 Iowa 31; Railroad v Spearman, 12 Iowa 112; Buell v. Ball, 20 Iowa 282; McNamara v. Estey, 22 Iowa 246.

Nolin & Hughes and Barclay, Fauntleroy, Cullen & Orthwein for respondent.

(1) That the gutter and the parallel granitoid sidewalk, which was "two feet away from, and which ran parallel to, the gutter," were not part of the "roadbed," see Meadows v. Insurance Co., 129 Mo. 76; Langston v. Insurance Co., 30 S.W. 428, 60 Ark. 381; Santa Clara Co. v. Railroad, 118 U.S. 412-413; Shreveport v. Railroad, 32 S.W. 189, 107 La. 785. (2) The court was correct in omitting to direct the jury to allow the $ 25 deduction, as claimed in appellant's point 2, for the reason that such allowance was only to be had in the event that the loss should be "adjusted" and "determined" by appraisal. We do not think that there is any conflict, or misunderstanding, as to the terms of the policy, upon this point. But if there should be any conflict in the terms of the contract--the policy--upon this question, such doubt should be determined in favor of the insured, and against the company, as the language used is that of the insurance company who writes the policy. Davis v. Insurance Co., 84 S.W. 260; Tucker v. Insurance Co., 51 S.E. 86; Szymkus v. Insurance Co., 114 Ill. 401; Martin v. Insurance Co., 192 U.S. 165; Layton v. Insurance Co., 139 N.W. 464. (3) That the unexplained refusal of the insurance company to adjust or pay this loss, without litigation, is sufficient to take the case to the jury upon the issue as to whether such refusal was vexatious and without cause, see Cox v. Insurance Co., 154 Mo.App. 464; Kellogg v. Insurance Co., 133 Mo.App. 391; Lockwood v. Insurance Co., 47 Mo. 50; Williams v. Life Insurance Co., 189 Mo. 70; Keller v. Insurance Co., 198 Mo. 460.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

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 twenty 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 instructed the jury that the cement or granitoid guttering was not a part of the roadbed of said road within the meaning of the policy read in evidence. It is urged that this instruction inheres with error for the reason the gutter is within and a part of the street or roadway. The proposition is, no doubt, entirely true with respect to the power of a city to construct, improve and maintain streets and is usually so declared. [See Warren v. Henly, 31 Iowa 31.] But though such be true, it is obvious that the gutter constructed in the street or on the roadway and along the side of the roadbed is not a portion of the roadbed when considered with reference to the subject-matter contemplated in this insurance policy. The language employed in insurance policies is to be construed so as to effectuate the insurance and not for the purpose of defeating it, for the insurance vouchsafed is the very object and purpose of the contract. Therefore, if the language is in the least doubtful, it is to be more strictly construed against the company who selects and incorporates it into the policy, and in such a way as to protect the interests of the insured who has paid a consideration for the indemnity. [See Tucker v. Colonial Fire Ins. Co., 58 W.Va. 30, 51 S.E. 86, decided May 11, 1905, 51 S.E. 86; Szymkus v. Eureka, etc., Ins. Co., 114 Ill.App. 401; London, etc., Ins. Co. v. Davis, 37 Tex. Civ. App. 348, 84 S.W. 260; Royal Ins. Co. v. Martin, 192 U.S. 149, 165, 48 L.Ed. 385, 24 S.Ct. 247.] In this view, the courts construe exemptions from liability, incorporated in insurance policies on...