Turner v. Fidelity & Casualty Company of New York

• Decision Date: 26 April 1918
• Citation: 202 S.W. 1078,274 Mo. 260
• Parties: MARY LEE TURNER, Appellant, v. FIDELITY & CASUALTY COMPANY OF NEW YORK
• Court: Missouri Supreme Court

202 S.W. 1078

274 Mo. 260

MARY LEE TURNER, Appellant, v. FIDELITY & CASUALTY COMPANY OF NEW YORK

Supreme Court of Missouri, Second Division

April 26, 1918

Appeal from St. Louis City Circuit Court. -- Hon. Thomas C Hennings, Judge.

Affirmed.

Rodgers & Koerner for appellant.

(1) The clause of the policy of insurance here under consideration should be construed liberally in favor of the insured. Schmohl v. Insurance Co., 189 S.W. 597; State ex rel. v. Ellison, 266 Mo. 590; 1 May on Insurance (4 Ed.), sec. 175, p. 343; La Force v. Assurance Co., 43 Mo.App. 518. (2) Plaintiff is entitled to double indemnity under the policy involved in this case. Tooley v Assurance Co., 3 Bissel (U.S.), 399; Northrup v Assurance Co., 43 N.Y. 516; Holgate v. Casualty Co., 18 Pa. Dist. 426; Theobald v. Assurance Co., 10 Exch. Rep. 45; Insurance Co. v. Thornton, 100 F. 582; Fay v. Insurance Co., 187 S.W. 861; Schmohl v. Insurance Co., 189 S.W. 597; Gibson v. Casualty Co., 140 N.Y.S. 1045; Wilmarth v. Insurance Co., 143 P. 780; Insurance Co. v. Muir, 126 F. 926; King v. Insurance Co., 101 Ga. 64.

Jones, Hocker, Sullivan & Angert, James C. Jones, Jr., and Vincent L. Boisaubin for respondent.

(1) Standing upon the ground in front of the automobile and in the act of cranking the machine at the time of the injury, assured was neither in nor on the automobile within the meaning of the policy. Banta v. Casualty Co., 134 Mo.App. 222; Anable v. Fid. & Cas. Co., 73 N. J. L. 320; Wallace v. Ins. Co., 2 Dom. L. Rep. 854, 26 Ont. L. R. 10; Ins. Co. v. Vandecar, 86 F. 282; Van Bokkelen v. Ins. Co., 34 A.D. 399, 167 N.Y. 590. (2) The word "on," as used in the policy, is a preposition in common use, which conveys the idea of resting upon or being supported by some object. Century Dict.; Cyc. 4108.

OPINION

FARIS, J.

Plaintiff, as beneficiary in an accident insurance policy issued by defendant, sued thereon and got judgment for the amount of the single indemnity for accidental death provided for in the policy, with interest thereon. Deeming herself entitled on the law and the facts to double indemnity, plaintiff in the conventional way appealed.

The facts are few, simple and undisputed; for the case was tried upon agreed facts, which run thus:

"Plaintiff is the widow of Thomas E. Turner, deceased. The defendant is an insurance company issuing life and accident insurance policies in the State of Missouri. On August 7, 1913, defendant issued to the said Thomas E. Turner the policy of accident insurance upon which this action is founded, which policy is filed as 'Exhibit A' to plaintiff's petition herein and is hereby made a part hereof to the same extent as though copied herein in full.

"On November 14, 1914, the said Thomas E. Turner suffered death as the direct result of bodily injuries sustained by him on that day under the circumstances and in the manner related by plaintiff in her deposition taken and filed in this cause, which deposition is hereby made a part hereof to the same extent as though copied herein in full. All of the facts stated in the above mentioned deposition are admitted to be true.

"The motive power of the automobile referred to in said deposition was furnished by a gasoline engine, and to start this engine running it was necessary to crank it; that is to say, to push into engagement with the forward end of the crank shaft of the engine the inner end of a crank or handle attached to the front end of and a part of the automobile, but which crank or handle has no function to perform except to start the engine, and, when not in use for this purpose, hangs idle and is a mere appendage, to be used again for starting the engine as required. In order to use this crank or handle for the purpose of starting the engine, it was necessary for said Turner to get out of the car, walk around in front of it and take hold of the crank or handle, and engage with and revolve the crank shaft of the engine, and this he was doing at the time the accident happened, as described in the attached deposition.

"Plaintiff herein was the beneficiary named in the above mentioned policy of insurance issued by defendant to the said Thomas E. Turner. At the time said Thomas E. Turner received the above mentioned injuries and at the time of his death the said insurance policy was in full force and effect. Since the death of said Thomas E. Turner, plaintiff has done everything required to be performed under the terms of said policy.

"Prior to suit brought, on December 23, 1914, defendant made legal tender to plaintiff of $ 5,000, and on February 9, 1915, deposited $ 5100 with the clerk of this court, pursuant to the provisions of Section 2282, Revised Statutes 1909, of which plaintiff was duly notified on February 9, 1915.

"Plaintiff contends that under the foregoing facts she is entitled to recover of defendant the sum of $ 10,000, with interest from the date of the filing of this suit, to-wit, on the 6th day of January 1915, and costs.

"Defendant admits liability, but contends that its liability, including interest and costs, does not exceed $ 5100, which said sum on the 9th day of February, 1915, was deposited by defendant with the clerk of the circuit court of the city of St. Louis as a tender of the amount admitted to be due plaintiff under the terms of the policy here sued on, including the accrued interest and costs."

Pertinent parts of the policy sued on provided that if the assured should come to his death as the direct result of a bodily injury, accidentally sustained, the defendant should be bound to pay to the beneficiary the sum of $ 5000. This we refer to above as the "single indemnity." If, however, such death of the assured should occur from any bodily injury "sustained by the assured . . . while in or on a private conveyance (excluding bicycles, motor-cycles and saddle-horses)" the policy provided that the single indemnity of $ 5000, otherwise payable upon assured's accidental death, should be doubled. And in such latter event the beneficiary would be entitled to the sum of $ 10,000.

The circumstances under which assured came to his death are thus shown by the evidence offered under the agreed statement of facts: On Saturday evening, November 14, 1914, about 5:30 o'clock assured and plaintiff, his wife, were in an automobile returning to their home from a trip to the Normandy Golf Club. The automobile in which they were riding belonged to the assured and was therefore a "private conveyance." Plaintiff who was just learning to drive an automobile was driving this machine. When assured and plaintiff reached a point near the intersection of Oakley and Woodland Streets, and were within half a block of their home, the "engine died" and the automobile stopped, thus making it necessary that the engine be started by "cranking" it (which operation, as well as the mechanism and manipulation requisite, is described more at length and particularly in the formal agreed facts, which we quote above). The assured got out of the automobile, and walked around in front of it, and while standing with both of his feet on the ground, took hold of the starting crank with his right hand and gave it a turn. Instantly the automobile started forward and ran against and struck assured, who fell, or was knocked down, and killed. Whether assured was killed by the blow superinduced by the forward impetus of the automobile, or by being run over, or by his head and body coming into violent contact with the ground, does not appear, and is not important here, for the fact that his death was caused by the "direct result of a bodily injury" sustained accidentally is conceded. While standing in front of the automobile, as assured was engaged in cranking it, no part of his body, except his right hand, was in contact with any part of the machine.

I. If assured when he sustained the injury which caused his death was "in or on a private conveyance," then the judgment below was erroneous. If assured was not "in or on a private conveyance," then the judgment nisi is right and the case must be affirmed. There is no contention that the automobile which struck assured and caused his death was not at the time a private conveyance. So, the question decisive of this case is narrowed to the single inquiry whether, when assured was struck and killed he was, under the terms of the contract of insurance, in or on the automobile in question.

We may premise what we shall say by disposing first of the contention that the word "on" as used in the contract of insurance means "at, adjacent to, near to, or alongside of." That the preposition "on" sometimes has one or the other of the latter meanings there can be no doubt. [Webster's Dict.] But in all such cases it will be found that the context itself makes clear the meaning intended to be conveyed, and in the very physical nature of things negatives its ordinary meaning of support from beneath, or superimposition of one thing over another. For while it is both correct and usual to say that St. Louis is on the Mississippi River, or that Jefferson City, or Smith's farm, is on the Missouri Pacific Railroad, we instantly know that what is meant is that these cities, or this farm are near to, alongside of, or lie adjacent to the river, or the railroad.

Here the word "on" is used and is to be construed as used (Sec. 8057, R. S. 1909) in its usual and ordinary signification, which is "at or in contact with the surface or upper part of a thing and supported by it." [Webster's Dict.] The word "in" as used in the contract of insurance is patently of narrower signification than is the word "on." For it might well be contended (how correctly we need not rule) that a person is "in" an automobile only when he is within it or enclosed by the space...