Suttles v. Blue Ridge Insurance , 238 N.C. 539 ( 1953 )

78 S.E.2d 246 (1953) 238 N.C. 539

SUTTLES
v.
BLUE RIDGE INS. CO.

No. 305.

Supreme Court of North Carolina.

November 4, 1953.

Horace Kennedy, Shelby, for appellant.

Horn & West, Shelby, for appellee.

DENNY, Justice.

The defendant's only exception is to the failure of the trial judge to sustain its motion for judgment of nonsuit. This simply challenges the right of plaintiff to recover for his loss under the terms of the insurance contract.

The only limitations on the plaintiff's use of his automobile were set out in the policy as "Use: Business and Pleasure" and "Exclusions * * * (a)," which states, "This policy does not apply under any of the coverages, while the automobile is used as a public or livery conveyance * * *."

The defendant argues in its brief that the destruction of the plaintiff's car did not result from an accident within the meaning of the policy. This contention is without merit. Moreover, if the damage to plaintiff's car was not the result of an accident within the meaning of the policy, why did the defendant pay to the M & J Finance Corporation the sum of $1,168.45 for the benefit of the plaintiff?

The real question is not whether the damage to plaintiff's car was the result of an accident within the meaning of the insurance contract, but whether its use at the time of the accident was within the use permitted under the terms of the policy.

The general rule in this respect is stated in 45 C.J.S., Insurance, § 798 (a), P. 841, as follows: "Unless there are special limitations in a policy insuring against loss of, or damage to, an automobile caused by accidental collision, the coverage extends to all losses caused by accidental collision however occasioned".

Likewise, in Appleman's Insurance Law and Practice, Volume 13, section 7465, page 190, we find the following statement: "A collision clause is strongly construed against the insurer upon the basis that, if it desired to insert exceptions precluding liability under the circumstances presented, it should have done so by inserting such exceptions as would limit the effect of the general terms employed," citing St. Paul F. & M. Ins. Co. v. American Compounding Co., 211 Ala. 593, 100 So. 904, 35 A.L.R. 1018.

In the case of Hallock v. American Casualty Co., 207 N.C. 195, 176 S.E. 241, 242 this Court construed a limitation in a policy similar to the one now before us. The plaintiff's chauffeur took a car covered by the policy without permission and damaged it. The question was whether at the time of the accident the car was being operated for the owner's "business or pleasure". The Court held that since the insurer had not limited recovery to damages resulting from an accident while the car was being used for business or pleasure by the owner, or some person authorized by him, the plaintiff was entitled to recover. Pauli v. St. Paul Mercury Indemnity Co., 167 Misc. 417, 4 N.Y.S.2d 41.

In Life & Casualty Ins. Co. of Tenn. v. Benion, 82 Ga.App. 571, 61 S.E.2d 579, the Court was interpreting a policy covering injuries received by "external, violent, and accidental means". The insured voluntarily drove in a stock car race and was killed while engaged therein. The Court said: "The policy did not contain any reference to or restrictions on the use of the automobile. If the insurer meant to restrict the use of such automobile, it could easily have done so by the insertion of a use-restriction clause in the policy." It was also contended there as here that stock car racing is so hazardous that an accident while engaged therein cannot be held to be unusual, unforeseen and unexpected. However, the Court held that engaging in a stock car race was not "so dangerous as to take the misfortune of the insured out of the realm of accident or accidental means," quoting with approval the following language from 29 Am. Jur., Insurance, section 944, page 716: "Voluntary exposure to danger by the holder of an accident insurance policy will not defeat recovery for an injury caused by accidental means, where such exposure is not an exception in the policy and the insured has no intention of producing the injury received."

We think the use of the automobile permitted under the policy is broad to cover the car while it was being operated for any legitimate purpose not expressly excluded by the terms of the policy. Therefore, the ruling of the court below on the motion for judgment as of nonsuit will be upheld.

No error.