Wolf v. American Cas. Co. of Reading, Pa.

• Decision Date: 08 April 1954
• Docket Number: Gen. No. 46237
• Parties: WOLF v. AMERICAN CAS. CO. OF READING, PA.
• Court: United States Appellate Court of Illinois

Page 777

118 N.E.2d 777

2 Ill.App.2d 124

WOLF v. AMERICAN CAS. CO. OF READING, PA.

Gen. No. 46237.

Appellate Court of Illinois, First District, Second Division.

April 8, 1954.

Ross, Berchem, Schwantes & Menk, Chicago, John C. Menk, Chicago, of counsel, for appellant.

Sidney J. & Arthur Wolf, Chicago, for appellee.

SCHWARTZ, Presiding Justice.

This is an appeal from a finding and judgment entered by the court in favor of plaintiff. The action was brought to recover medical expenses pursuant to the provision of an insurance policy, wherein the insurance company agreed as follows:

'To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, ambulance, hospital, professional nursing and funeral services, to or for each person who sustains bodily injury, sickness or disease, caused by accident, while in or upon, entering or alighting from the automobile if the automobile is being used by the named insured or with his permission.'

The question presented is whether plaintiff's injury was caused by an accident which occurred 'while in or upon, entering or alighting from the automobile.'

On November 25, 1951, plaintiff while driving his car skidded into the rear of another car. After the impact the cars were separated by a distance of some feet. Plaintiff and the driver of the other car got out of their automobiles and walked to the curb where they exchanged identifications and license numbers. They then started to walk back for the purpose of verifying the respective license numbers and to re-enter their cars. While plaintiff was two or three feet in front of his car and while he was in the act of reaching for a pencil to write down his license number a third car struck the rear of his car, knocking it forward and hitting him. He had been out of his car for two or three minutes when the accident occurred.

Plaintiff argues that the clause of the policy involved is ambiguous and should be construed most strongly against the insurance company. So construed, he contends, it is broad enough to include the injuries in this case. The rule relating to the construction of insurance policies has been stated often. It is summarized in Mosby v. Mutual Life Ins. Co. of N. Y., 405 Ill. 599, 92 N.E.2d 103, 107, 18 A.L.R.2d 1054, as follows:

'Ambiguous provisions or equivocal expressions whereby an insurer seeks to limit its liability will be construed most strongly against the insurer and liberally in favor of the insured. Lenkutis v. New York Life Ins. Co., 374 Ill. 136, 28 N.E.2d 86.'

This is a sound rule. It recognizes the realities of the transaction, that is, that the provisions of an insurance policy are not the product of negotiations between insurer and insured but are written by the insurance company and out of necessity, perhaps, submitted for acceptance without change. It is nevertheless the contract of the parties and from it we must find what was meant by the words used. The question involved in the instant case has not been before any reviewing court of this state, but there are a few decisions of other courts. The cases divide themselves into two groups--those in which the principal reliance is placed on the words 'entering or alighting,' and those in which emphasis is placed on the words 'in or upon.'

We will first consider the 'entering or alighting' cases. In Ross v. Protective Indemnity Co., 135 Conn. 150, 62 A.2d 340, the insured and a passenger alighted from an automobile for the purpose of answering a call of nature. Several minutes latter and while they were holding a conversation in the highway at the rear of the car, they were struck by a car proceeding in the same direction. The court held that they were not in or upon the automobile nor were they 'entering or alighting'. In New Amsterdam Casualty Co. v. Fromer, D.C.Mun.App., 75 A.2d 645, 646, 19 A.L.R.2d 509, the insured, thinking he struck another vehicle, stopped his car and walked back to talk to the other driver. After being informed that he had not struck the vehicle, the insured started to return to his own car and while about six feet from it, was struck by a third automobile. The reviewing court reversed the trial court and held that as 'applied to the instant facts', the words "while in or upon, entering or alighting" were plain and unambiguous; that the most that could be said was that the insured was approaching the vehicle for the prospective purpose of entering it and was not at that time entering the automobile. The court, in specific language, limited the scope of its ruling to the facts in that case. It will be noted that in the two foregoing cases, the insured at the time of injury had no physical contact with his automobile. In Goodwin v. Lumbermens Mutual Casualty Co., 1952, 199 Md. 121, 85 A.2d 759, Mrs. Goodwin and three friends were about to enter Mrs. Goodwin's car. While one unlocked the front door and reached in to release the lock on the rear door, another car struck and injured them. The court held that all had completed their approach to the car and were, therefore in the process of entering. In Katz v. Ocean Accident & Guarantee Corp., 1952, 202 Misc. 745, 112 N.Y.S.2d 737, as plaintiff was locking the door of her car after alighting, she observed an automobile heading toward her. She ran between the rear of her car and the front of another car and was there crushed when the car she had observed hit her car. The court held that the injuries were occasioned while in the act of being upon and alighting from the car. This was a decision of the Municipal Court of New York. The court stated that under the construction placed upon the clause in question by the defendant, the plaintiff would have been required to stand where she was at the time of alighting and permit herself to be struck by the approaching car while continuing her efforts to lock the door of her car, and he felt that this was repugnant to common decency. Such reasoning is not relevant to the interpretation of an insurance contract. The decision in Goodwin v. Lumbermens Mutual Casualty Co., supra, is more helpful. There the court considered that 'entering' began where 'approach' ended. In the instant case plaintiff had almost finished his approach, having stopped only to look at the license number. However, it is in the construction of the words 'in or upon' that the cases are more helpful in arriving at a decision in the instant case. [199 Md. 121, 85 A.2d 760.]

There are four cases in the 'in or upon' category. In Sherman v. New York Casualty Co., 1951, 78 R.I. 393, 82 A.2d 839, 840, the plaintiff parked his car in a shedlike open sided structure. After alighting from the car he noticed that it was rolling backward toward a stone wall. He attempted to stop it by putting his right hand on the taillight, his left hand on the registration plate, and his knee on the bumper. When the car crashed into the wall, both his legs were broken. The court held that the words 'in or upon' should be given a broad and liberal...