Travelers Indem. Co. v. Hyde

• Decision Date: 16 January 1961
• Docket Number: No. 5-2225,5-2225
• Citation: 232 Ark. 1020,342 S.W.2d 295
• Parties: TRAVELERS INDEMNITY COMPANY, Appellant, v. Imogene HYDE, Administratirx, Appellee.
• Court: Arkansas Supreme Court

Page 295

342 S.W.2d 295

232 Ark. 1020

TRAVELERS INDEMNITY COMPANY, Appellant, v. Imogene HYDE, Administratirx, Appellee.

No. 5-2225.

Supreme Court of Arkansas.

Jan. 16, 1961.

Rehearing Denied Feb. 13, 1961.

Wright, Harrison, Lindsey & Upton, Little Rock, for appellant.

Gutensohn & Gutensohn, Fort Smith, for appellee.

ROBINSON, Justice.

This suit was filed by Imogene Hyde, administratrix of the estate of M. D. Hyde, against appellant, the Travelers Indemnity Company, on a policy of insurance issued and delivered to Mr. Hyde. Among other things the policy provides to indemnify Hyde in a sum not exceeding $2,000 for medical expenses incurred due to injuries received while occupying an automobile. Hyde was injured while driving a motor vehicle on the 17th day of July, 1959, and died a few days later as the result of such injuries. The insurance company admits the issuance of the policy and that an accident occurred which resulted in the death of Hyde. The insurance company further admits the expenditure of a sum in excess of $2,000 for medical, surgical, X-rays, ambulance, professional nursing, hospital, funeral and burial expenses. But the company denies liability on the ground that at the time of the accident Hyde was occupying an automobile furnished for his regular use.

The case was tried before the court sitting as a jury, and from a judgment in favor of the administratrix the insurance company has appealed.

The parties stipulated as follows: 'It is stipulated and agreed that at the time of the accident which resulted in the death of M. D. Hyde, he was driving a motor vehicle furnished and owned by his employer, Fort Smith Couch and Bedding Company. Said vehicle was assigned to M. D. Hyde for his exclusive use and was the only vehicle driven by him in the course of his employment by Fort Smith Couch and Bedding Company. This vehicle was a tractor and trailer used for hauling furniture for said Company to various parts of the United States in the course of business for the Company, and was never used at any time for the personal use of M. D. Hyde.'

The controversial provisions of the policy provide: 'The Travelers Indemnity Company * * * agrees with the insured * * * To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, nursing and funeral services: * * * To or for the named insured and each relative who sustained bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury,' caused by accident, while occupying or through being struck by an automobile.'

Under the heading 'Exclusions' the policy also provides: 'This policy does not apply under Part II [Medical Payments] to bodily injury: * * * sustained by the named insured or a relative * * * while occupying an automobile * * * furnished for the regular use of either the named insured or any relative, other than an automobile defined herein as an 'owned automobile'.'

Appellant contends that the truck Hyde was driving at the time he was injured was furnished for his regular use within the meaning of the exclusion provision and that the insurance company is therefore not liable. The sole point raised on appeal is whether the automobile was furnished to Hyde for his regular use within the meaning of the exclusion provision of the policy.

The provisions of the policy are ambiguous. First, the policy provides that the insured will be indemnified for medical expenses if he is injured while occupying an automobile. Here he was injured while occupying an automobile, but the policy further provides that the provision for medical payments does not apply if he is injured while occupying an automobile furnished for his regular use. These provisions of the policy render it ambiguous. Just what is meant by 'for the regular use of either the named insured or any relative?' If 'for his regular use' means personal use, it is one thing; if partly for his personal use and partly for the use of the employer, it could mean something else. If the insured was to use it in a certain area for one purpose, and he was injured while on a trip outside that area, for another purpose, then there could be a different meaning. Standing alone the terms of the policy are not sufficient to clear up the ambiguity, and the stipulation is not sufficient to enable the court to say as a matter of law what the ambiguous provisions really mean. True, the stipulation states the truck was furnished for the insured's exclusive use. Perhaps it can be inferred that exclusive use means regular use. On the other hand, it could be exclusive without being regular. A jury could find that the wording in the policy 'for the regular use of the insured' means personal use. This language certainly has that connotation. And the jury could reach the conclusion that the term means 'for the benefit of the insured.' If this construction were put on the language by a jury, then under the facts as set out in the stipulation the insured would be entitled to recover.

Some cases, such as Davy v. Merchants Mut. Cas. Co., 97 N.H. 236, 85 A.2d 388; Home Ins. Co. v. Kennedy, Del.Super., 152 A.2d 115; Voelker v. Travelers Ind. Co., 7 Cir., 260 F.2d 275; and Farm Bureau Mutual Automobile Ins. Co. v. Marr, D.C., 128 F.Supp. 67, 69, have been decided on the theory that 'for his regular use' means practically any use by the insured. In the Farm Bureau case the insured had never before driven the car in which he was injured, and there was nothing to show there was any probability that he would ever have driven it again, yet the court held the car was furnished for his regular use. We think the better view is expressed in Pacific Automobile Ins. Co. v. Lewis, 56 Cal.App.2d 597, 132 P.2d 846, 848. There the court said: 'Whether an automobile is furnished by another to an insured for his regular use may reasonably depend upon the time, place and purpose for which it is to be used. One furnished for all purposes and at all times and places would clearly be for his regular use. One furnished at all times but strictly for business purposes alone could hardly be said to have been furnished for his regular use at a time and place when it was being used for personal purposes. It may be assumed that when a car is furnished all of the time for business purposes, with permission to use the same for incidental personal purposes, all within a certain area, the car might be said to be furnished for regular use within that area. But when a car thus furnished for such a use is driven to a distant point on one occasion, with the special permission of the one furnishing the car, that particular use would hardly seem to be a 'regular use' of the car. It cannot be said, as a matter of law, that such a use on a particular occasion, which is a departure from the customary use for which the car is furnished, is a regular use within the meaning of these clauses of the policies. A question of fact is presented which calls for an interpretation of the language of the policies relating to the facts involved.'

And in Farm Bureau Mutual Automobile Ins. Co. v. Marr, D.C., 128 F.Supp. 67, 70, in holding that a similar provision in a policy presented a question of fact to be determined by the facts of the particular case before the court, the court pointed out certain signposts to be looked for, as follows:

'1. Was the use of the car in question made available most of the time to the insured?

'2. Did the insured make more than mere occasional use of the car?

'3. Did the insured need to obtain permission to use the car or had that been granted by blanket authority?

'4. Was there a purpose for the use of the car in the permission granted or by the blanket authority and was it being used for such purpose?

'5. Was it being used in the area where such car would be expected to be used?'

There are two principles of law firmly established in this State that apply here: (1) Provisions of a policy of insurance 'must be construed most strongly against the insurance company that prepared it, and if a reasonable construction could be placed on the contract that would justify recovery, it would be the duty of the court to so construe it.' Metropolitan Life Ins. Co. v. Guinn, 199 Ark. 994, 136 S.W.2d 681, 684; Phoenix Assurance Co. v. Loetscher, 215 Ark. 23, 219 S.W.2d 629; Washington Fire & Marine Ins. Co. v. Ryburn, 228 Ark. 930, 311 S.W.2d 302. (2)...