Trans-Continental Mut. Ins. Co. v. Harrison

• Decision Date: 24 March 1955
• Docket Number: 3 Div. 717,TRANS-CONTINENTAL
• Citation: 51 A.L.R.2d 917,78 So.2d 917,262 Ala. 373
• Parties: , 51 A.L.R.2d 917 MUTUAL INSURANCE COMPANY, Inc., et al. v. La Trelle HARRISON.
• Court: Alabama Supreme Court

Page 917

78 So.2d 917

262 Ala. 373, 51 A.L.R.2d 917

TRANS-CONTINENTAL MUTUAL INSURANCE COMPANY, Inc., et al. v. La Trelle HARRISON.

3 Div. 717.

Supreme Court of Alabama.

March 24, 1955.

The endorsement upon the policy is as follows:

'It is understood and agreed that coverages A, B and C of this policy are in force only when the vehicle is being operated by the named insured or a member of his immediate family'.

L. H. Walden and Rushton, Stakely & Johnston, Montgomery, for appellants.

Jones, Murray & Stewart, Montgomery, for appellee.

MAYFIELD, Justice.

This is an appeal from the Circuit Court of Montgomery County, Alabama, in equity, overruling respondent-appellant's demurrer to complainant-appellee's bill of complaint.

This is a statutory equitable action by an injured party, La Trelle Harrison, against the insurer of the judgment-debtor to reach and apply insurance money to the satisfaction of the judgment, pursuant to § 12, Tit. 28, Code of Alabama 1940. See United States Casualty Company, Inc., v. Early Wilson, Ala., 76 So.2d 506.

The appellant's single assignment of error--'The court erred in overruling defendant's demurrer to the bill' is sufficient to present the error complained of for review. It is not necessary to enumerate in separate assignments each, or any, ground of demurrer. Cahaba Coal Co. v. Elliott, 183 Ala. 298, 62 So. 808. A demurrer is an entity of pleading. Cahaba Coal Co. v. Elliott, supra; United States Casualty Company, Inc., v. Early Wilson, supra.

The original judgment against the insured, Grady W. Gilley, was recovered by the plaintiff, La Trelle Harrison, in the State of Arkansas. A copy of this judgment was attached to the complainant-appellee's complaint, and contains a detailed finding of fact upon which the judgment was based.

The insured Gilley (the defendant in the original case in Arkansas) and his friend Williams were returning from a joint pleasure venture in the early hours of the morning accompanied by two young ladies. Williams, at the request of Gilley, was driving the automobile. Gilley and his 'date' were sitting in the rear seat of the automobile. While chauffering under the direction and control of the insured, Williams went to sleep at the wheel and allowed the car to leave the road and overturn. Williams met his death in the crash, and the complainant-appellee, Miss La Trelle Harrison, suffered grievous injuries.

The trial court in Arkansas found:

'That the defendant, Gilley (the insured), negligently and carelessly permitted and instructed his agent and chauffeur Paul E. Williams to drive the car after the defendant had noticed his chauffeur dozing at the wheel. That Paul E. Williams drove the automobile under the direction of and in company with the defendant, at a high, excessive and uncontrollable rate of speed and went to sleep while so driving. That by reason of the separate and concurrent negligent acts and omissions of defendant Grady W. Gilley, plaintiff La Trelle Harrison suffered and sustained the following injuries through no fault or carelessness on her part.'

The learned solicitors for the parties in oral argument before this Court agreed that the single issue presented by this appeal was the construction of the word 'operated' within the meaning of a restrictive endorsement to the policy of liability insurance held by Gilley and issued by the respondent-appellant Insurance Company.

That is to say, whether or not the insurance coverage purchased was broad enough to cover the factual situation of this accident, or whether it was necessary for the insured to be manually and physically driving the automobile at the time of this unfortunate accident for the liability policy to extend its coverage to the passenger La Trelle Harrison.

In defendance to the position of counsel for both parties, stated in their briefs and arguments and reiterated in their oral argument, that this appeal presents the sole question formerly noted; we will inject no other issues into this opinion. Wherever possible, cases should be reviewed by this Court on the issues conceived by the contending parties in the trial court and the questions presented to, and determined by, the trial judge.

This is a case of first impression in Alabama. Several of our sister States have reviewed this problem and reached divergent results.

For direct authority on this principal question, the appellant relies on the cases of Witherstine v. Employers' Liability Assur. Corp., 235 N.Y. 168, 139 N.E. 229, 28 A.L.R. 1298; Twogood v. American Farmers Mut. Auto. Ins. Ass'n, 229 Iowa 1133, 296 N.W. 239; Ayres v. Harleysville Mut. Casualty Co., 172 Va. 383, 2 S.E.2d 303; Morrow v. Asher, D.C., 55 F.2d 365; O'Tier v. Sell, 252 N.Y. 400, 169 N.E. 624; and the following texts: Appleman Insurance Law and Practice, Vol. 7, Sect. 4314, p. 82; Blashfield Cyclopedia of Automobile Law & Practice, Vol. 6, Sect. 3941; American Jurisprudence, Vol. 5, Sect. 506, p. 790.

As direct authority for their contention, appellee cites: Snyder, for Use of Brooks v. United States Mutual Insurance Company, 312 Ill.App. 337, 38 N.E.2d 540; Arcara v. Moresse, 258 N.Y. 211, 179 N.E. 389; Neel v. Indemnity Insurance Co., 122 N.J.L. 560, 6 A.2d 722; State Farm Mutual Auto Insurance Co. v. Coughran, 303 U.S. 485, 58 S.Ct. 670, 82 L.Ed. 970.

By way of analogy the appellee also cites cases dealing with the construction of the word 'operate' in cases dealing with service of process, imputed negligence, negligence cases, railroad cases and references to the Standard Dictionaries.

Appellant seeks comfort in the usage of the word 'operate' as construed in many sections of the Motor Vehicle Law of Alabama to signify the personal act of physically working the mechanism of the automobile.

The Witherstine case, supra, is heavily relied on by the appellant. The rationable of this opinion seems to have been strongly influenced by the definition which the verb 'operated' has acquired in the State of New York when read in connection with the New York Highway Laws. We here observe, that in the main Highway and Motor Vehicle Laws are penal in their character and are subject to a rigorous and restrictive interpretation. The application of these statutes to other persons cannot be extended by intendment. Unless a criminal statute 'spells out' the liability of the violators, a citizen cannot be subjected to punishment under a Criminal Code.

Judges McLaughlin and Crane dissented from the holding in the Witherstine case, supra [235 N.Y. 168, 139 N.E. 231], stating:

'I dissent. One of the common and ordinary meanings of the word 'operate' is 'to direct or superintend the working of.' Century Dictionary. The defendant prepared the policy and used this word. Therefore its use should be given the broadest meaning in favor of the plaintiff. The prevailing opinion proceeds upon the theory that it is used in a restricted sense. The meaning thus ascribed to it I think too narrow, and for that reason I vote to affirm.'

In the case of Twogood v. American Farmers Mut. Auto. Ins. Ass'n, supra, the policy exclusion prohibited driving by an unlicensed person, or while being operated or manipulated by a person prohibited from driving, etc. This case is easily distinguishable from the case at bar. The two terms 'operated or manipulated' taken together are much stronger than the wording of the exclusion to the policy here under consideration. Appellant's counsel makes the following telling point--although we are inclined to think he overstates his argument:

'Endorsements are placed on insurance policies to nullify provisions contained therein, to amplify provisions contained therein or to restrict provisions contained therein. It is obvious that the endorsement placed on this policy was for the purpose of restricting the definition of the insured. Unless the endorsement is given the construction contended for by the appellants, it has no force or effect, although a part of the policy contract. The policy as originally written covered the negligent acts of all persons operating the automobile with permission.

'The endorsement stating that the coverages are in force only when the vehicle is being operated by the named insured or a member of his immediate family has been attacked by appellee as having no restrictive effect whatsoever.'

In answer to this argument, the appellee states that if the intent of the exclusion was to restrict the coverage to the actual driver at the wheel, that the verbiage of the exclusion should have been 'drive' rather than the more general and somewhat ambiguous term 'operate'.

Without further burdening this opinion by a detailed analysis of the opposing authorities of our sister States, we conclude that these cases cannot be reconciled. We further find an...