Carpenter v. Life Casualty Ins. Co. of Tenn. , 74 Ga. App. 745 ( 1947 )

Where in an action, brought by the beneficiary, on an accident-insurance policy of limited liability, insuring the beneficiary's husband against the results of bodily injuries or death resulting from an accident to or a collision of the automobile in which the insured was riding or driving, and further stipulating as a condition to recovery that there must be some external and visible injury to the automobile, a failure to allege the presence of external and visible injury to the automobile will subject the petition to a general demurrer as not setting forth a cause of action.

DECIDED FEBRUARY 5, 1947. Mrs. Dove Carpenter brought an action against Life Casualty Insurance Company of Tennessee, seeking to recover on an insurance policy on account of the accidental drowning of her husband, insured under the policy. The plaintiff alleged: That the defendant insured her husband on April 29, 1940, and the policy issued was in force at the time of the insured's death, November 6, 1945; that on the date of his death the insured was traveling in an automobile to a fishing camp at or near the City Locks in or near Augusta, Georgia, and the automobile was being driven along the canal banks when the automobile, in an accidental manner, left the road, and turned so as to leave it stopped at a sharp angle, and on a sharp incline, and while the automobile was in this position, the insured in endeavoring to get out of the automobile, fell down the bank of the canal and was accidentally killed or drowned; and that the automobile accident was the proximate cause of the death of the insured. She says further: That the road on which the automobile was traveling was, by usage, a public highway; that, after the death of the insured and within the time provided by the terms of the policy, she made proof of the death of the insured, and that his death was caused by accidental means, as set forth in the policy; that on May 17, 1946, the defendant admitted to the plaintiff that proper proofs had been made of the insured's death, but denied liability under the plaintiff's claim; and that by reason of these facts the plaintiff is entitled to recover $1000 under the policy and also the statutory penalty and reasonable attorney's fees.

The defendant demurred generally and specially on the following grounds: (1) The allegations fail to set forth any cause of action; (2) the petition contains no allegations of fact sufficient and necessary to show that the insured met his death solely by external, violent, and accidental means within the coverage of the policy of insurance sued on; (3) the allegations of the petition show affirmatively that the death of the insured was caused by other means and under other conditions than those set forth in and covered by the policy; (4) it appears from the allegations that the vehicle in which the insured was riding as alleged was not involved in any accident or collision within the meaning and provisions of the policy; (5) the allegations with reference to the occurrence being accidental, the proximate cause of the insured's death, and the road's being, by usage, a public one, are merely erroneous legal conclusions and are not supported by sufficient allegations of fact; and (6) the petition fails to allege facts sufficient to show the defendant acted in bad faith, and the allegations with reference to the recovery of a statutory penalty and attorney's fees should be stricken.

The policy which was attached to the petition, entitled, "Industrial Travel and Pedestrian Policy," contained the following material provisions: "The Life Casualty Insurance Company of Tennessee insures the person named in said schedule against the result of bodily injuries received during the time this policy is in force, and effected solely by external, violent, and accidental means, strictly in the manner hereafter stated subject to all the provisions and limitations hereinafter contained as follows: . . public highway as used in this policy shall mean the traveled and improved portion of the highway and shall not be construed to include any portion of railroad or interurban railway yards, station grounds or right of way, except where crossed by a public thoroughfare dedicated to and used by the public for automobile or horse vehicle traffic, and shall not include any river, stream or waterway or public highway, which although dedicated to the public has not in fact been opened to and is being used by the public generally for vehicular traffic; . . or (if death or injury be caused) by collision of or by any accident to any private motor-driven automobile or motor-driven truck inside of which the insured is riding or driving, . . provided that in all cases referred to in this paragraph there shall be some external or visible injury to and on the said vehicle . . of the collision or accident . . and provided the collision or accident must occur on a public highway as heretofore defined. . . No indemnity will be paid as the result of, or for injuries caused by other means or under other conditions than those set forth above. . . This policy does not cover disappearance or injuries either fatal or non-fatal of which there is no visible contusion or wound on the exterior of the body of the insured causing the death or disability . . or loss or injury sustained by the insured while he has physically present in his body alcoholic or intoxicating liquors or narcotics in any degree or during the time the insured is committing some act in violation of either state, county, or municipal law, provided that such violation of law has some causal connection with the accident, injury, or loss . . and it is the intention of the parties that each of these limitations, exceptions and conditions are to be literally construed. . . The premium charged in this policy [five cents weekly] has been adjusted to the liability assumed by placing therein various conditions, exceptions, and limitations, and it is the intention of the parties that each of these limitations, exceptions, and conditions are to be literally construed, that none of them are to be stricken out or ignored or disregarded in its interpretation, either on the ground that they are ambiguous or wholly or partially or substantially repugnant or for any reason, but each is to be given its full and literal meaning, it being further understood by the parties that the said premium will buy only such protection as the terms of the policy literally show. . . The burden of proof shall be upon the person suing to prove that the loss or injury is covered by this policy, and the burden of proof shall not be upon the company to show that the loss or injury was occasioned by an excepted cause."

The court sustained the general demurrer and dismissed the petition, and the plaintiff excepted to this judgment. Life Casualty Insurance Company of Tennessee insured Roy C. Carpenter "against the result of bodily injuries received during the time this policy is in force, effected solely by external, violent, and accidental means strictly in themanner hereafter stated, subject to all the provisions and limitations hereinafter contained." (Italics added.) The only question for determination is whether the insured met his death in such a manner and under such circumstances as are covered by the policy of insurance. The policy attached to the petition enumerates the circumstances and situations which it covers. The only provision remotely covering the circumstances set forth in the petition as causing the insured's death is that the insurance company insures the husband of the plaintiff, Roy C. Carpenter, against the result of bodily injuries or death caused by "collision of or any accident to any private motor-driven automobile or motor-driven truck inside of which the insured is riding or driving . . provided that in all cases referred to in this paragraph there shall be some external or visible injury to and on said vehicle, . . of the collision or accident . . and provided the collision or accident must occur on a public highway as heretofore defined (public highway as used in this policy shall mean the traveled and improved portion of the highway and shall not be construed to include any portion of railroad or interurban railway yards, station grounds or right of way, except where crossed by a public thoroughfare dedicated to and used by the public for automobile or horse-vehicle traffic, and shall not include any river, stream or waterway or public highway, which although dedicated to the public has not in fact been opened to and is being used by the public generally for vehicular traffic). . . No indemnity willbe paid as the result of, or for injuries caused by other meansor under other conditions than those set forth above." (Italics added.) The petition alleges that the insured was traveling along a road which was by usage a public highway when his automobile in an accidental manner left the road and turned so as to leave the automobile stopped at a sharp angle, and while it was in this position, the insured in endeavoring to get out of the automobile, fell down the embankment of a canal and was accidentally drowned, and the automobile accident was the proximate cause of the death of the insured. This policy is a contract of limited accident-insurance liability and differs from the general accident policy which insures against accidental injury or death under broad terms, excepting from coverage those risks which the parties to the contract agree shall not be covered, and including all situations not excepted. In this policy the insurance covers only those injuries or death occurring under circumstances enumerated, and the policy purports to cover only these and no other circumstances. The exceptions to these enumerated circumstances are that even these circumstances shall not be covered if injury or loss is sustained by the insured while he has physically present in his body alcoholic or intoxicating liquors or narcotics in any degree, or during the time the insured is committing some act in violation of either State, county, or municipal law, provided such violations of law have some causal connection with the accident, injury, or loss. The provisions of the policy which we have quoted above are clear, unequivocal, and unambiguous, and while we recognize the rule that a contract of insurance must be construed most strongly against the insurer (Wheeler v. Fidelity c. Co., 129 Ga. 237,58 S.E. 709), still the words of the policy must be given the meaning they ordinarily bear; and where it is manifest that it was the intention of the parties that liability should attach only under given circumstances, the law will uphold the contract according to its true intent and purpose. As we have shown, the policy insures the plaintiff's husband against the result of bodily injuries caused by the collision of or by any accident to any private motor-driven automobile inside of which the insured is riding or driving. There is no allegation that a collision occurred, but the petition does say that the automobile accidentally left the road and stopped at a sharp angle, and that in endeavoring to get out of the automobile the insured fell down an embankment into a canal and was drowned, and that the accident to the automobile was the proximate cause of the insured's death. Assuming for the sake of argument, though we do not concede or decide the point, that the accident to the automobile was the proximate cause of the insured's death, still the plaintiff fails to state a cause of action, by not bringing the occurrence within the terms of the policy. The policy stipulates in effect that, even if there is a collision or an accident to the vehicle in which the insured is riding, the collision or accident resulting in loss or injury will not come within the terms of the policy unless there is some external and visible injury to the vehicle in which the insured was riding or driving. There is no allegation of external and visible injury to the automobile from which it is alleged the insured fell after it accidentally left the road. This is an accident policy issued for a minimum premium, and expressly limits the right of recovery within very narrow bounds, and the occurrence resulting in injury or loss to the insured must come within such bounds in order for indemnity to be recovered; and the plaintiff, in the absence of an allegation that there was external and visible injury to the automobile in which the insured was riding or driving, fails to bring the occurrence within the terms of the policy. See, in this connection, Wheeler v. Fidelity c. Co., supra; Jones v. Continental Life Ins. Co., 37 Ga. App. 289 (139 S.E. 911); Mitchell v. Federal Life Ins. Co., 57 Ga. App. 206 (194 S.E. 921); Life Casualty Ins. Co. of Tenn. v. Roland,45 Ga. App. 467 (165 S.E. 293); Bullard v. Life CasualtyIns. Co. of Tenn., 49 Ga. App. 27 (174 S.E. 256); Bullard v. Life Casualty Ins. Co. of Tenn., 178 Ga. 673 (173 S.E. 855); Harley v. Life Casualty Ins. Co. of Tenn., 40 Ga. App. 171 (149 S.E. 76); Higgins v. Life Casualty Ins. Co. of Tenn., 220 N.C. 243 (17 S.E.2d 5). the court did not, therefore, err in sustaining the demurrer and dismissing the petition.

Judgment affirmed. Sutton, P. J., and Parker, J., concur.