Barnes v. Great American Ind Co.

The plaintiff held an accident insurance policy in the company of the defendant. The policy was designated as a "State Automobile Policy" and provided for certain payments in a restricted class of accidents, all relating to accidents arising in connection with automobiles. The coverage in which we are interested is for loss resulting directly and independently of all other causes from bodily injuries affected solely through accidental means in consequence of "being struck, run down or run over by an automobile." The plaintiff was injured rather seriously and brought an action against the defendant seeking to recover $400, the amount claimed due under the terms of the policy.

A jury was waived and the cause submitted to the court upon the opening statement of counsel for plaintiff. Upon consideration of such statement and the pleadings, judgment was awarded the plaintiff in the full amount claimed. There was no evidence offered other than the opening statement, except the policy. The opening statement contains several assertions which if admitted to be true would necessarily decide the case in favor of the plaintiff. It is asserted in the statement that the plaintiff was accidentally "run down" by an automobile, in which accident she suffered as complained in the petition. At another point it is stated that an automobile bore down upon her, "running her down." If we are to consider these two statements as being a correct statement of the facts, then her accident is covered by the above quoted provision of the policy.

But it is fair to say, in clarification of the statement, that the following are the facts: The plaintiff, on December 25, 1935, in the evening, was walking south on the west sidewalk of High street at Brighton road in the north end of the city of Columbus, and started across Brighton road. At the time there was no traffic on Brighton road and no interference. She was nearly across such road and within two feet of the south line when an automobile coming from the south on High street turned westward cutting the southwest corner of the intersection of the two streets and swerved into Brighton road near to the plaintiff. The machine was less than a foot from her when she jumped and fell, thereby causing the injuries of which she complained. She was not struck by the machine.

The question presented is whether the injury that she suffered in her voluntary or involuntary attempt to avoid being struck by the oncoming automobile is covered by the policy and was "in consequence of being run down by an automobile."

Both sides have ingeniously argued in behalf of their several positions. Many dictionary definitions are given of the term run down," and it is asserted by one side that these definitions all are to the effect that there must be an actual physical contact between the moving object and the person run down. Definitions are given which include, to run against, to collide with, to crush, to overthrow, to overbear, to chase until exhausted, to pursue until overtaken as to run down a criminal, to knock down or overthrow, to run or drive against, to run against and knock down. It is the contention of the defendant that these words must be confined to the meaning that unless there is actual physical contact of the moving automobile and the insured there can be no recovery; that the words are plain and unambiguous, and are susceptible of but one meaning, and that the court is not required or permitted to construe them but must accord them only the meaning commonly given them. It is insisted that the contract is clear and unambiguous and that there is no need of a resort to the rules of construction, and that the effect of the contract can not be destroyed by judicial construction; that policies of insurance are to be construed so as to give effect to the intention and express language of the parties, and like other contracts are to be construed according to the sense and meaning of the terms which the parties have used. It is urged that while it is true that the company must accept any reasonable interpretation of the contract in favor of the policyholder, this rule does not justify an unreasonable interpretation of the language.

We think we may analyze this policy under the rule that all the words used should be given an appropriate meaning and not assume that any are superfluous.

The policyholder is protected against injury resulting from being "struck, run down or run over" by an automobile. Counsel for defendant use many apt illustrations as to the situations that might be applicable to these several hazards, but they insist that in order to be "run down" one must be struck. It occurs to us that if the policy is limited to what they contend there is no reason for the use of the expression "run down." It is urged, however, that a person might not be injured by the first contact with the moving machine but might receive his injury from being thrown to a hard pavement, and that that condition would be covered appropriately by the term "run down." If one is insured against being struck he is insured against all the consequences flowing from such an accident, whether it be a bruise that arises from the impact of the machine when one is not thrown down, or from broken limbs by reason of the fact that one is thrown down after being struck; the injury flows from the original striking. We conclude that the term "run down" does not necessarily include a striking or a collision with a moving object and that it has other different meanings. The question is whether one who is a pedestrian upon a street and receives an injury by reason of an attempt to avoid an impending collision with an oncoming automobile is within the hazard of being "run down." It may be observed that even in the dictionary definition of the expression "run down" we find such synonyms as to "overthrow," to "overbear." Counsel might assert that one may not be overthrown or overborne unless there be physical contact. We might visualize a fire department or a car recklessly driven down the street at a rapid rate where a pedestrian crossing the street is put in imminent danger unless he flees to safety, and if in such effort to save himself he receives an injury, such injury flows from the peril of being "run down" by the fire department or rapidly driven machine.

We may draw on our imagination as to the many things that might happen to a pedestrian which would give rise to the claim that he was "run down" by an automobile, but we must remember that the question as to whether he was actually "run down" is always subject to determination from the facts that may be proved in each particular case. We think the facts included in the statement of counsel upon which the issues were tried are sufficient to justify the trial court in holding that the plaintiff was, as a matter of fact, "run down" by an automobile which suddenly swerved toward her as she was crossing Brighton road, and that she did the only natural thing, whether voluntary or involuntary, that one would do to protect herself from the oncoming machine.

We are not impressed with the cases cited by the defendant. There are patent distinctions in the facts under consideration.

The case most strongly relied upon is Gant v. Provident Life Accident Ins. Co., 197 N.C. 122, 147 S.E. 740, counsel stating that the words used in the policy were under judicial consideration. An examination of this case discloses that the terms of the policy were not the same and that the accident was caused by an entirely different set of circumstances. Paragraph three of the syllabus, which we italicize to disclose the difference, states:

"3. Under accident policy covering injuries by being ``struck bymoving automobile' insured struck by plank thrown by wheels ofautomobile could not recover."

Had the coverage in the present case been restricted to a "moving automobile" the cited case would have been more nearly parallel, although that was not the determinative point.

Great American Mutl. Indemnity Co. v. Jones, 111 Ohio St. 84,144 N.E. 596, 35 A.L.R., 1023, is of interest in showing the broad interpretation given to insurance policies.

Judgment affirmed.

BARNES, P.J., and HORNBECK, J., concur.