Thomas v. Farm Bureau Mut. Ins. Co. of Idaho
| Decision Date | 22 June 1960 |
| Docket Number | No. 8836,8836 |
| Citation | 353 P.2d 776,82 Idaho 314 |
| Parties | Clark A. THOMAS, Plaintiff-Respondent, v. FARM BUREAU MUTUAL INSURANCE COMPANY OF IDAHO, INC., Defendant-Appellant. |
| Court | Idaho Supreme Court |
Merrill & Merrill, Pocatello, for appellant.
Albaugh, Bloem & Smith, W. Joe Anderson, Idaho Falls, for respondent.
Plaintiff (respondent) instituted this action to recover on the indemnity provisions of an automobile liability insurance policy issued by defendant (appellant).
Defendant, in consideration of premium paid, issued its policy of insurance No. 5-02-40640, effective May 2, 1956, to continue in effect until cancelled or lapsed, which provided that defendant, as insurer, should pay all sums which plaintiff should become obligated to pay by reason of liability imposed upon him by law for damages because of bodily injury or property damage arising out of the ownership, maintenance and use of his 1953 Nash, 4-door body type automobile.
A major question involved in this action is presented by certain provisions of Insuring Agreement No. V of the policy, reading as follows:
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'(c) to any automobile not of the private passenger type while used in the business or occupation of the named insured or spouse, * * *.'
May 5, 1956, plaintiff, while driving a 1956 Willys jeep one-half ton pickup truck, registered in the name of Farrel West, was involved in an accident resulting in personal injury and property damage to one Bette P. Sorensen.
Plaintiff notified defendant of the accident and of a claim for damages made against him by Sorensen, but defendant based its denial of liability on the theory that the policy, quoting from defendant's claim manager, 'is not effective to protect you [Clark A. Thomas] while driving the Willys pickup registered to Mr. West,' under the provisions of the policy's Insuring Agreement No. V.
Action instituted by Sorensen for recovery for personal injury and property damage resulted in a verdict May 21, 1958, in Sorensen's favor, and judgment duly entered on the verdict against plaintiff, for $8,000 and costs.
Plaintiff, in his complaint against defendant in this action, alleges the May 5, 1956, collision which resulted in Sorensen's personal injury and property damage; also, that at the time of the collision the jeep pickup was a vehicle within the purview of the policy coverage of insurance policy No. 5-02-40640; that Sorensen had made claim upon and commenced action against plaintiff for damages, and that plaintiff had duly notified defendant of the accident and Sorensen's claim and action against him, but that defendant had refused to defend plaintiff against Sorensen's claim, and had denied liability under the policy of insurance; that trial of the action had resulted in a verdict and judgment in Sorensen's favor against plaintiff for $8,000 and costs; that defendant had refused to accept liability therefor and to perform and carry out its obligations under the contract of insurance. Plaintiff prayed for recovery against defendant of the sum of $8,089.10, the amount of the Sorensen judgment and costs, and for attorney fees, incurred in defending the Sorensen action and prosecuting the present action. I.C. § 41-1403.
Trial was had before the court with a jury acting in an advisory capacity. The Court, inter alia, submitted an interrogatory to the jury, as to whether the jeep pickup truck, operated by plaintiff on May 5, 1956, was a private passenger type automobile, which the jury answered in the affirmative.
Thereafter, the trial court rendered and filed its memorandum opinion, having incorporated therein its findings of fact and conclusions of law, and August 31, 1959, rendered judgment against defendant in favor of plaintiff, for the amount of the Sorensen judgment and costs, together with attorney fees incurred by plaintiff in defending the Sorensen action, and prosecuting the present action. Defendant perfected an appeal from the judgment.
Defendant's assignments of error present a major question, decisive of this appeal, i. e., whether the Willys jeep pickup truck involved in the collision with the Sorensen vehicle was a private passenger type automobile, which the trial court decided in the affirmative. Defendant contends that the evidence is insufficient to support the conclusions of the trial court in that regard.
The evidence shows that the vehicle was a 1956 half-ton type Willys jeep four-wheel drive pickup having a truck bed, registered in the office of the assessor of Jefferson county, and licensed, as a truck.
The record indicates that such a type of Willys jeep vehicle is used frequently in farming operations and often in pursuing outdoor activities, hunting primarily.
The evidence further shows that the Willys jeep pickup truck was owned by and registered in the name of Farrel West as a pickup truck; that plaintiff obtained the vehicle and its keys from Mr. West during March 1956 and continued its possession and limited use during April and May, and until sometime in June, 1956; that at the time of the accident with the Sorensen vehicle plaintiff was using the jeep pickup by permission and at the direction of Mr. West, who then was engaged in land leveling and light construction work. Plaintiff used the vehicle for hauling various supplies and equipment to the construction work in which he was engaged under Mr. West.
Plaintiff also used the pickup several times to transport Mr. West out to the job and in bringing him back. While plaintiff rode back and forth to work in the vehicle, he never at any time used it for pleasure.
Contracts of insurance, like other contracts, must be construed and understood, in the absence of ambiguity, in their plain, ordinary and proper sense, according to the meaning as determined from the plain wording thereof. Automobile Insurance Co. of Hartford, Conn. v. Denny, 8 Cir., 206 F.2d 401, 40 A.L.R.2d 865; Hobson v. Mutual Benefit Health & Accident Ass'n, 99 Cal.App.2d 330, 221 P.2d 761; Blair v. Automobile Owners Safety Insurance Co., 178 Kan. 615, 290 P.2d 1028; Downs v. National Casualty Co., 146 Conn. 490, 152 A.2d 316. In Miller v. World Insurance Co., 76 Idaho 355, 357, 283 P.2d 581, 582, this Court stated the rule:
'Policies of insurance, as other contracts, are to be construed in their ordinary meaning, and where the language employed is clear and unambiguous, there is no occasion to construe a policy other than the meaning as determined from the plain wording therein.
In Couch on Insurance, 2nd Ed., Vol. 1, pp. 678-679, it is stated:
'* * * if there is no ambiguity in the insurance contract it is the duty of the court to apply to the words used their ordinary meaning and not favor either party in their construction.
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'Usual and ordinary meaning has been stated variously to be that meaning which the particular language conveys to the popular mind, to most people, to the average, ordinary, normal man, to a reasonable man, to persons with usual and ordinary understanding, to a businessman, or to a layman.'
Insuring Agreement No. V, subpar. (c), of the insurance policy is not ambiguous in the particular under consideration here. The contract provides in simple terms: 'This insuring agreement does not apply * * * to any automobile not of the private passenger type while used in the business or occupation of the named insured.' The question for decision is whether the jeep vehicle which respondent was using in his occupation May 5, 1956, was 'not of the private passenger type.'
Mr. West, owner of the Willys jeep vehicle, testified:
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Plaintiff described the vehicle:
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In determining this question we also deem the following to be pertinent.
First, the policy insured plaintiff against liability imposed upon him by law for damages because of bodily injury or property damage arising out of the ownership, maintenance and use of his 1953 Nash sedan automobile, a vehicle of the private passenger type. The Nash automobile is referred to in Insuring Agreement No. V: 'such insurance is afforded by this policy for liability with respect to the private passenger automobile described in the declarations * * *;' the declarations therein before set out describe plaintiff's 1953 Nash sedan. The definitive risk thus insured against should not be arbitrarily extended. As stated in Miller v. World Insurance Co., supra, [76 Idaho 355, 283 P.2d 582] '* * * the Court by construction can not create a liability not assumed by the insurer, nor make a new contract for the parties.' See also Marshall v....
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