Midwest Dairy Products Corp. v. Ohio Casualty Insurance , 356 Ill. 389 ( 1934 )

On August 30, 1930, the defendant in error (hereinafter called the defendant) issued and delivered to the plaintiff in error (hereinafter called the plaintiff) an insurance policy insuring against loss and expense arising or resulting from lawful claims upon the plaintiff for damages, including the defense and payment of costs of suit on account of bodily injuries to or death suffered by any person by reason of the use or operation of any of the motor vehicles described in such policy. On June 11, 1931, an amendment to the policy covering a Chevrolet truck was issued and delivered. On July 4, 1931, in Irvington, Illinois, while the policy was in force, a woman was struck and injured by such truck while it was being operated by an agent of the plaintiff. The woman subsequently died as a result of the injuries so sustained. The administrator of the decedent's estate sued the plaintiff, charging that the death of the intestate was caused by the negligent operation of the truck. In that suit the administrator recovered a judgment for $1750 and costs, which was paid by the plaintiff herein. In defense of that suit the plaintiff expended for attorney fees, the preparation of the case for trial, and money advanced to procure the attendance of witnesses, $375. The defendant refused to pay the plaintiff any of the money so expended by it. This suit is brought to recover such sums.

The defendant filed a special plea averring that the truck, at the time and place of the injuries to the decedent, was being operated in violation of law, in that it was operated by the plaintiff by means of a chauffeur employed for that purpose who was under eighteen years of age and was prohibited by the laws of this State from operating the truck and that by such laws the plaintiff was forbidden to employ him for such purpose. The plaintiff demurred to the plea. The demurrer was overruled. The plaintiff elected to abide by its demurrer, and judgment was entered against it in bar of the action and for costs. An appeal was prosecuted by the plaintiff to the Appellate Court for the Fourth District, which court affirmed the judgment. On application by the plaintiff to this court for writ of certiorari the writ was granted, and the record of the case is here for review.

The policy contained this provision: "This policy does not cover any loss, damage or expense * * * while the automobile insured hereunder is operated or used by any person in violation of law as to age, or in any event under the age of fourteen years."

A general statute in force in this State at the time of the issuance and delivery of the policy and the date of the accident provided that no person shall operate or drive a motor vehicle who is under fifteen years of age unless such person is accompanied by a duly licensed chauffeur or the owner of the motor vehicle being operated. (Smith's Stat. 1933, chap. 121, sec. 31, par. 232, p. 2515; Cahill's Stat. 1933, chap. 95a, sec. 31, par. 32, p. 1892.) The defendant's plea did not aver the age of the chauffeur at the time of the accident nor that he was not licensed. It is fundamental that all intendments are against the pleader. Under this rule we assume, in the consideration of the case, that the chauffeur was above the age of fifteen years. The statute of this State provides for the examination and licensing of persons desiring to follow the vocation of chauffeur and that no chauffeur's license shall be issued to any person under eighteen years of age. (Cahill's Stat. 1933, sec. 27, p. 1891; Smith's Stat. 1933, sec. 27, p. 2514.) Section 29 of the same act provides that no person or corporation shall employ as a chauffeur any person not so licensed.

In the interpretation of insurance policies, terms used in the contract, in the absence of ambiguity, must be taken in their plain, usual and popular sense. The insured, when purchasing an insurance contract, seldom has the benefit of legal advice or the assistance of a person versed and trained in the analysis and interpretation of insurance contracts. The circumstances attending the preparation of an insurance contract are different from those usually surrounding other contracts. The company prepares the contract in the absence of the insured or anyone appearing in his behalf. He has no voice in determining or directing the contents of the contract. It is within the power of the insurance company to write the contract as it desires. It selects the words that constitute the contract. If there is a lack of clearness in the meaning of the contract the insurer is responsible therefor. Out of the situation attending the preparation of insurance contracts there have grown several generally recognized canons of construction, viz.:

In cases of ambiguity that construction of insurance policies will be adopted which favors the insured. Such rule is consistent with both reason and justice. Any fair doubt as to the meaning of an insurance contract should be resolved against the insurer. Mutual Life Ins. Co. v. Hurni Packing Co.263 U.S. 167, 68 L. ed. 235.

Insurance contracts should be liberally construed in favor of the insured. The insured should not be deprived of the benefit of insurance for which he has paid, except where the terms of the policy clearly, definitely and explicitly require it.Levinson v. Fidelity and Casualty Co. 348 Ill. 495; Kaplan v. United States Fidelity and Guaranty Co. 343 id. 44.

Equivocal expressions in an insurance contract whereby the insurer seeks to narrow the range of its liability or renounce the liability purported to be assumed by the contract are to be construed most strongly against the insurer. Where two constructions of the terms of a policy equally reasonable can be obtained from the wording of the insurance contract, that construction will be adopted which enables the beneficiary to recover his loss. Zeman v. North American Union, 263 Ill. 304;Schroeder v. Trade Ins. Co. 109 id. 157; Grand Legion SelectKnights v. Beaty, 224 id. 346; Healey v. MutualAccident Ass'n, 133 id. 556; Travelers Ins. Co. v. Dunlap, 160 id. 642.

In the case at bar there is a doubt as to the meaning of the terms employed by the defendant with reference to the age limit. If a reasonable construction of that term as written in the policy will permit a recovery on the part of the plaintiff it is our duty to adopt that construction. We have no doubt but that the average person purchasing insurance would understand from a reading of the provision of the policy herein that the sole risk sought to be excluded thereby was the operation of the insured's automobile by a child under fifteen years of age, and would not realize that it was also intended thereby to include within such provision as to age the operation of the vehicle under the chauffeur statute. It is obvious that the hazard not assumed by the terms of the contract in question was the use of a motor vehicle by a minor, whose operation of such motor vehicle was absolutely forbidden solely by reason of his age. The test was not the lack of ability and dexterity on the part of the operator, but the sole test as to those coming within the prohibited class was that of age. While a minor under eighteen years of age may not under our statute be legally licensed as a chauffeur to operrate a motor vehicle, yet the minimum age of eighteen is not the only requirement for a licensed chauffeur. He is also required to possess qualifications other than being eighteen years of age or over. He is required to take and pass an examination as to his proficiency and ability in the operation of a motor vehicle. He must also have a written statement, signed by at least two reputable citizens, that he is a fit and competent person to operate a motor vehicle.

For a minor in this State lawfully to operate a motor vehicle as that term is understood he is only required to be fifteen years of age. Neither skill nor ability is exacted of him. The provision under consideration is clearly an age limit as applied to the operation of motor vehicles generally. There is nothing in the policy definitely indicating that the age limit as used in the policy applied to chauffeurs. It obviously was an age limit applied to the operators of motor vehicles generally. If the insurer had contemplated that chauffeurs under eighteen years of age should fall within those excluded from the operation of motor vehicles, an appropriate provision explicitly and definitely so stating could readily have been written into the policy.

The defendant, in support of its position, cites UnitedStates Fidelity and Guaranty Co. v. Guenther, 281 U.S. 34,74 L. ed. 683, and Maryland Casualty Co. v. Friedman,45 F.2d 369. The decision in the Friedman case is based entirely upon the Guenther case. The Guenther case is readily distinguishable from the case at bar. There the policy provided that it was subject to the express condition that it "shall not cover any liability of the assured while [the automobile is] being operated by any person under the age limit fixed by law, or under the age of sixteen years in any event." There was also in force in Lakewood, Ohio, an ordinance which made it "unlawful for any owner, bailee, lessee or custodian of any motor vehicle to permit a minor under the age of eighteen years to operate or run said motor vehicle upon public highways, streets or alleys in said city of Lakewood." The accident involved in that case occurred upon one of the streets within the corporate limits of Lakewood. The driver of the car was seventeen years old. The car was covered by a policy of insurance containing the provision with reference to the age limit last above recited. Recovery of damages was denied the owner of the car in a suit against the insurance company. The validity of the ordinance was conceded. The court held that such age limit fixed by the ordinance was one "fixed by law." There was no ambiguity in the meaning of the policy there before the court. Here the provision for a licensed chauffeur is not an age limit law but is a chauffeur statute.

The circuit court was in error in overruling the demurrer to the plea and in entering judgment against the plaintiff and the Appellate Court was in error in affirming such judgment.

The judgments of the Appellate and circuit courts are each reversed and the cause is remanded to the circuit court of Marion county, with directions to sustain the demurrer to the defendant's plea.

Reversed and remanded, with directions.