Opinion
No. 27914.
May 20, 1929.
1. PLEADING. Pleading must be construed most strongly against pleader.
A pleading must be construed most strongly against the pleader.
2. INSURANCE. Terms of accident policy should be understood in plain, ordinary sense.
Terms used in an accident insurance policy should be understood in their plain, ordinary, and popular sense, rather than in a philosophical and scientific sense.
3. INSURANCE. Where mule, on which insured was riding and which was hitched to wagon, stumbled, precipitating insured to ground, injury was not covered by policy providing indemnity for wrecking of horse-drawn vehicle in or on which insured is riding or driving.
Where insured, at time of accident, was hauling logs on log wagon drawn by team of four mules and was riding one of mules which stumbled, precipitating insured to ground and dragging him some distance after falling, accident was not covered by policy providing indemnity for injury caused by wrecking of private horse-drawn vehicle in or on which insured is riding or driving, since neither the log wagon nor the team was wrecked and insured was not riding or driving in or on the log wagon, and his beneficiary could not recover for his death resulting from accident.
APPEAL from circuit court of Warren county, Hon. E.L. BRIEN, Judge.
Henry, Canizaro Henry and Brunini Hirsh, all of Vicksburg, for appellant.
Terms used in an accident insurance policy should be understood in their plain ordinary sense rather than in a scientific or philosophic sense.
Richards v. Standard Accident Insurance Co. (Utah), 17 A.L.R. 1183; Gallagher v. Fidelity, c., Co., 163 App. Div. 556, 148 N.Y. Supp. 1016; Continental Casualty Co. v. Clark, L.R.A. 1918F, 1007, 173 P. 453; 1 C.J., p. 418; Lewis v. Ocean Acci. Guarantee Corp., 224 N.Y. 18, 7 A.L.R. 1129, 120 N.E. 56; Salt Lake City v. Salt Lake City Water Electrical Power Co., 54 Utah, 10, 174 P. 1134; Aurnhammer v. Brotherhood Acc. Co. (Mass.), 146 N.E. 47; Commonwealth Ins. Co. v. Chase, 20 Pick. 142, 145; Taber v. China Mutual Ins. Co., 131 Mass. 239; Wood v. Lincoln Kennebeck Ins. Co., 6 Mass. 479, 482; Proctor v. Adams, 113 Mass. 376, 18 Am. Rep. 500; Chase v. Corcoran, 106 Mass. 286, 288; Atwood v. Cobb, 16 Pick. 227, 229, 26 Am. Dec. 657; Mochel v. Iowa State Travelling Men's Association (Iowa), 213 N.W. 259; Wilson v. Travellers' Insurance Co. (Cal.), 109 P. 366.
The stumbling of a mule, drawing a wagon and ridden by a driver, constitutes the wrecking of a private horse-drawn vehicle.
Schmohl v. Travellers' Insurance Co. (Mo.), 177 S.W. 1108; Aetna Life Ins. Co. v. Vandecar, 86 Fed. 282, 30 C.C.A. 48; Bigelow v. Insurance Co., 93 U.S. 284, 23 L.Ed. 918; Insurance Co. v. McConkey, 127 U.S. 651, 8 Sup.Ct. 1360, 32 L.Ed. 308; Insurance Co. v. Seaver, 19 Wall. 531, 22 L.Ed. 155; Van Bokkelen v. Travelers' Ins. Co. of Hartford, 34 App. Div. 399, 54 N.Y. Supp. 307, affirmed in 167 N.Y. 590, 60 N.E. 1121; Anable v. Casualty Co., 73 N.J. Law, 320, 63 A. 92; Banta v. Casualty Co., 134 Mo. App. 222, 113 S.W. 1140; Andrews v. State, 8 Ga. App. 700, 70 S.E. 111; Woods v. State, 67 Miss. 575, 7 So. 495; King v. Travelers' Ins. Co., 101 Ga. 64, 28 S.E. 661; Insurance Co. v. Muir, 126 Fed. 926, 61 C.C.A. 456; Berling v. Insurance Co., 121 Cal. 458, 53 P. 918, 41 L.R.A. 467, 66 Am. St. Rep. 49; Tooley v. Assurance Co., 24 Fed. Cas. No. 14,098; Barber v. Insurance Co., 165 Ill. App. 239.
Dabney Dabney, of Vicksburg, for appellee.
Where an accident insurance policy provided for indemnity for injury caused by wrecking of private horse-drawn vehicle in or on which insured was riding or driving and at the time of the accident, insured was hauling logs on a log wagon drawn by team of four mules and was riding one of the mules which stumbled and precipitated insured to the ground and dragged him some distance after falling; in such case insured is not protected under such policy since neither the log wagon nor the team was wrecked and insured was not riding or driving in or on the log wagon at the time of the accident.
Words used in written contracts should be given their common everyday meaning and definitive refinements should be ignored.
A policy of insurance is a contract between the parties.
LaPorte v. North American Accident Ins. Co. (La.), 109 So. Rep. 767; Banks v. State, 16 Ga. App. 401, 85 S.E. 629; National Life Ins. Co. v. Johnson, 118 So. Rep. 898.
Appellant brought this action in the circuit court of Warren county against appellee on an accident insurance policy, issued by appellee to James T. Hart, the husband of the appellant, to recover the indemnity provided in the policy for the death of her husband, which, by the terms of the policy, was payable to appellant. Appellee demurred to appellant's declaration, which demurrer the court sustained, and appellant declining to plead further, a final judgment was entered dismissing the suit, from which judgment appellant prosecutes this appeal.
The provisions of the policy upon which the solution of the question involved depends follow:
"This policy provides indemnity for loss of life, limb, sight, or time by accidental means, as herein limited and provided. No. 6357161, North American Accident Insurance Company, . . . does hereby insure James Thomas Hart, age fifty-two of Vicksburg, Mississippi, (hereinafter referred to as the insured), subject to the limitations and conditions herein contained, against death or disability resulting directly, independently, and exclusively of all other causes from bodily injuries effected solely through external, violent, and accidental means during the term of this policy, and sustained by the insured in the manner following:
"Paragraph 2. By the wrecking of a taxicab, public omnibus, automobile stage, private automobile, or private horse-drawn vehicle, in or on which the insured is riding or driving, provided that such conveyance is not being used in a racing or speed contest, or for a criminal purpose, or to escape the consequences of an illegal or criminal use or arrest by vested authority; or by a policeman or a member of a volunteer or paid fire department, while on duty."
And in paragraph 4, under General Provisions, we find: "No indemnity will be paid for loss of life, limb, or sight caused by other means or under other conditions than those set forth therein."
The manner in which the insured was injured, from which injury he died, is set out in the declaration in the following language: "That the said insured, James Thomas Hart, deceased, on Thursday, the 13th day of September, 1928, while on the State Highway just east of Vicksburg, and driving at that time a four-mule team attached to a log wagon, he, the said deceased, James Thomas Hart, was riding one of the mules which was drawing the said log wagon, when the saddle stirrup broke as the animal on which he was riding stumbled and wrecked the team, and precipitated the said deceased to the ground, dragging him some distance, and thereby resulting in his injury and death."
Under the principle that a pleading must be construed most strongly against the pleader, appellant's declaration made this kind of case. The insured was hauling logs on a log wagon drawn by a team of four mules, riding, at the time of the accident, on the right-hand tongue mule while driving the team. The mule on which the insured was driving stumbled, causing one of the stirrups of the saddle on which he was riding to break, precipitating him to the ground and dragging him some distance after falling. The injuries caused by the fall resulted in his death. There is no charge in the declaration that the wagon was wrecked. It does charge that the team was wrecked, but is silent as to what constituted the wrecking of the team, unless it was the mere stumbling of the mule on which the insured was riding. In other words, the declaration is entirely silent as to whether the wagon or the team drawing it was wrecked, except the allegation, as stated, that the stumbling of the mule on which the insured was riding wrecked the team. The log wagon was a "private horse-drawn" vehicle.
Section 2 of the policy provides indemnity for an injury caused by the "wrecking . . . of a private horse-drawn vehicle, in or on which the insured is riding or driving." (Italics ours.)
There are two questions argued, namely: (1) Was the log wagon wrecked; and (2) was the insured riding or driving in or on it? "The terms used in an accident insurance policy should be understood in their plain, ordinary, and popular sense rather than in a philosophical or scientific sense." Richards v. Standard Accident Insurance Co., 58 Utah, 622, 200 P. 1017, 17 A.L.R. 1183. Applying that principle to the policy here involved, we think it plain that neither the log wagon nor the team that was drawing the wagon was wrecked; and, furthermore, that when the insured received his injury, he was not riding or driving in or on the log wagon.
It follows from these views that there was no liability on the policy.
Affirmed.