{ "id": 1485052, "name": "Life & Casualty Insurance Company of Tennessee v. Kinney", "name_abbreviation": "Life & Casualty Insurance v. Kinney", "decision_date": "1944-02-14", "docket_number": "4-7221", "first_page": "804", "last_page": "810", "citations": [ { "type": "official", "cite": "206 Ark. 804" }, { "type": "parallel", "cite": "177 S.W.2d 768" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "130 A. L. R. 1155", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "187 Miss. 143", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 1873351 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/miss/187/0143-01" ] }, { "cite": "196 S. E. 59", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "185 Ga. 572", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 190708 ], "opinion_index": 0, "case_paths": [ "/ga/185/0572-01" ] }, { "cite": "115 S. W. 2d 1087", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "195 Ark. 1114", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726332 ], "opinion_index": 0, "case_paths": [ "/ark/195/1114-01" ] }, { "cite": "49 S. W. 2d 387", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "185 Ark. 693", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1435297 ], "opinion_index": 0, "case_paths": [ "/ark/185/0693-01" ] } ], "analysis": { "cardinality": 550, "char_count": 11773, "ocr_confidence": 0.501, "pagerank": { "raw": 3.53913518665183e-07, "percentile": 0.8847170240427145 }, "sha256": "3df004df1d672cbba2e0975f81d4596327df42ec58f5072707e71394c7d8bd0d", "simhash": "1:67071cc3de3f1ae5", "word_count": 2073 }, "last_updated": "2023-07-14T15:20:24.664732+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MoHaney and Holt, JJ., dissent." ], "parties": [ "Life & Casualty Insurance Company of Tennessee v. Kinney." ], "opinions": [ { "text": "McFaddin, J.\nThis appeal necessitates the construction to he placed on some of the provisions in an insurance policy.\nAppellee, as beneficiary of Edward Kinney, deceased, sued appellant on a policy of insurance. From a jury verdict for plaintiff there is this appeal; and the sole question here is whether the trial court erred in refusing to direct a verdict for appellant. Briefly, the events leading up to the death of the insured were:\nOn the public highway in the city of Benton, Arkansas, a large trailer became disconnected from its truck, and the front of the trailer fell to the highway. A hoist line was extended from the front end of the trailer to the back of a tow truck in an effort to have the tow truck, by pulling the hoist line, to raise the front of the trailer. In thus pulling the front end of the tow trucli would rise from the pavement; and in an effort to afford weight to the front end of the tow truck the deceased, Edward Kinney, stood on the front bumper of the tow truck. He stood erect with his hands on the radiator and facing the driver of the tow truck. Nevertheless the front end of the tow truck went up some ten or twelve feet in the air \u2014 even to a forty-five degree angle. The hoist line slipped, or broke, and the front end of the tow truck fell to the pavement, and Edward Kinney\u2019s feet slipped from the bumper to the pavement. On striking the pavement the front of the tow truck rebounded in the air, and on this rebound the bumper hit Edward Kinney under the chin and knocked him over backwards on the pavement; and his death was instantaneous.\nThe policy of insurance here involved contained a coverage for injury or death of the insured worded as follows: \u201cIf the insured shall by.being struck by actually coming in physical contact with the vehicle itself and not by coming in contact with some object loaded on or attached hereto, or some object struck and propelled against the person by said vehicle, which is being propelled by steam, cable, electricity, naphtha, gasoline, horse, compressed air or liquid power, ivhile the insured is walking or standing on a public highway, or be struck by any vehicle named above while riding a bicycle on a public highway, which term, public highway, as used in this policy shall mean the traveled and improved portion of the highway.\u201d (Italics our own.)\nThe coverage here concerned was contained in one sentence of several hundred words and we have copied only a part of the sentence, but being the part here relied on by the appellant company.\nBefore discussing appellant\u2019s contentions it might be well to state a few rules that apply on appeal in a case like this one: A. If there was any substantial evidence, viewed in the light most favorable to the appellee, to make a question of fact for the jury, then 'the motion for directed verdict was properly refused, Arkansas Power & Light Company v. Connelly, 185 Ark. 693, 49 S. W. 2d 387; Meyer v. Moore, 195 Ark. 1114, 115 S. W. 2d 1087, and see West\u2019s Arkansas Digest, \u201cAppeal and Error,\u201d \u00a7 997 (3). B. When there is an ambiguity in an insurance contract, that construction of the contract will be adopted which favors the insured; and as between a construction which will defeat a recovery and one which will allow a recovery, the latter will prevail, 32 C. J. 1152; 29 Am. Jur., \u201cInsurance,\u201d \u00a7 166; West\u2019s Arkansas Digest, \u201cInsurance,\u201d \u00a7 146 (3).\nWith these familiar rules in mind we proceed to list and discuss the three contentions of appellant as stated in the brief. The first two of these are based on the wording of the policy as previously copied herein.\nAppellant\u2019s First Contention: \u201cThe Vehicle Which Struck the Insured Was Not a Vehicle-Which Was \u2018Being Propelled\u2019 By Gasoline Within the Meaning of That Provision of the Policy.\u201d\nIn other words appellant contends that when the bumper of the tow car rebounded and inflicted the fatal injury the tow car was not then and there propelled by gasoline, but propelled by the force of the tires striking the pavement. Appellant admits that the tow car was powered by gasoline, but claims that the language in the policy \u201cwhich is being propelled by . . . gasoline\u201d is a clause designed to mean that the car must have been propelled by gasoline at the instant when it struck the insured; and appellant argues that the tow car was at-that' time on a rebound from the pavement and not at that moment under the power of the gasoline motor.\nThis argument of appellant overlooks a fundamental rule of sentence structure which the policy itself recognizes. This rule is that a \u201cwhich\u201d clause is usually used to describe, modify, or limit the preceding subject, and is not used to indicate the time of the event. A \u201cwhen\u201d clause or a \u201cwhile\u201d clause indicates the time of an event. In the quoted section of the policy previously set out herein it will he observed that in referring to the position of the insured as standing, the policy says \u201cwhile the insured is walking or standing\u201d; and to indicate when the insured might be covered in bicycle riding.the policy says \u201cwhile riding a bicycle.\u201d Thus the policy uses a \u201cwhile\u201d clause to indicate the element of time. But to indicate what was meant by a public highway the. policy says \u201cwhich term, public highway, . . . shall mean.\u201d The \u201cwhich\u201d clause modified or described the previous subject. And likewise, to indicate the type of the vehicle, the policy says \u201cby said vehicle which is being propelled. . . .\u201d So the portion of the policy here involved shows a \u201cwhich\u201d clause to indicate condition. The policy furnished its own rule of rhetoric as to the construction of a \u201cwhich\u201d clause and a \u201cwhile!\u2019 clause. The clause, \u201cwhich is being propelled by . . . gasoline,\u201d did not mean propelled at that moment, but meant a vehicle which was normally propelled by gasoline. In other words it was a \u201cwhich\u201d clause modifying the word, vehicle, rather than a \u201cwhile\u201d clause meaning \u2018 \u2018 at the moment. \u2019 \u2019 At least the policy is fairly susceptible of this distinction between a \u201cwhich\u201d clause and a \u201cwhile\u201d clause; and, as we have previously pointed out, in case of ambiguity the doubts must be resolved in favor of the insured. So we deny the first contention of the appellant.\nAppellant\u2019s Second Contention: \u201cThe Insured Was Not \u2018Walking,\u2019 or \u2018Standing\u2019 On a Public Highway Within the Meaning of Those Terms As Used in the Policy Contract.\u201d\nIt will be recalled that the insured was standing on the bumper of the tow car facing the driver of the tow car and that when the front of the .car fell to the pavement the insured\u2019s feet slipped to the pavement. The insured was thus facing the front of the tow car, and on the-rebound of the tow car the front bumper struck the insured under the chin and knocked him over backwards and his head hit the pavement, and he died instantly. Eye witnesses testified. Said one: \u201cThe truck fell and when it hit the ground his feet slipped off of the bumper to the pavement and the truck rebounded and hit him under the chin \u2014 the bumper caught him under the chin. After it hit the ground the truck rebounded four or five feet.\u201d Said another witness: \u201cThe front end of this truck was reared up in a position like that (indicating) and Edward was standing on the front bumper and -all at once it dropped and when it hit the pavement his feet slipped off and when the truck rebounded it hit him under the chin.\u201d\nNow the word \u201cstanding\u201d is generally used in contradistinction to \u2018 \u2018 sitting, \u2019 \u2019 \u201ckneeling, \u201d or \u201clying. \u2019 \u2019 The word indicates a position of the body. If the insured had been sitting, kneeling or lying, he would not have been struck under the chin by the bumper on the rebound of the tow truck and thrown- backwards to the pavement. It is admitted that he was on the highway. The witnesses testified that his feet \u201cslipped to the pavement\u201d a moment before the fatal injury. A moment later \u2014 but for the injury received \u2014 he might have been in some other position, and doubtless would have been from the force of the fall; but, at the moment when he\u201ewas hit by the bumper, the jury could have found that he was in a standing position. This clause \u201cwhile the insured is walking or standing on a public highway\u201d is a \u201cwhile\u201d clause, and it' indicates time as we have previously pointed out; and the jury could have found from the testimony of the eye witnesses that at the- second of his injury the insured was standing on the highway.\nThis clause \u201cwhile walking or standing on the highway\u201d has been construed by other courts. In Smith v. Life & Casualty Insurance Company, 185 Ga. 572, 196 S. E. 59, the insured was running to catch a truck. He ran in front of the truck and tried to catch hold of it and missed in some way and fell under the rear wheel. The Supreme 'Court of Georgia, in allowing a recovery, said: \u201cWhile the witnesses did not testify in terms that the insured had his feet on the ground, this- may be inferred from a consideration of the entire testimony.\u201d In Life & Casualty v. Greenlee, 187 Miss. 143, 192 So. 340, the insured was killed while mounting a truck, being struck by the bolster of the truck, knocked to the ground and run over; and the Supreme Court of Mississippi held that under these circumstances the insured was standing on the highway. In 130 A. L. R. 1155, there is an annotation on the words \u201cwhile walking or standing on the highway\u201d; and many cases are collected in that annotation.\nWe reach the conclusion that in the case, at bar the jury might reasonably have found from the testimony of the witnesses that the insured was within the coverage of the policy as regards this clause; so we deny the appellant\u2019s second contention. \" #\nAppellant\u2019s Third Contention: \u201cThe Hazard, -or Bisk, to Which the Insured Voluntarily and Unnecessarily Subjected Himself (and Which Was the Cause of His Death) By Assuming and Remaining in a Perilous Position On the Truck Bumper Was Manifestly Not a Bisk Covered By the Policy or 'in Contemplation of the Parties When the Contract Was Written.\u201d\n\u25a0Finally, appellant contends that the death of the insured happened under such peculiar circumstances that the parties could not have intended a coverage at the low premium rate charged for this policy. We have no way of knowing from the record in this case what was in the minds of the parties when the contract was written other than what appears in the policy; and we have examined the original policy which is in the transcript. In bold letters on the front of the policy there is this language: \u201cThis policy provides benefits for loss of life, limb, or sight by accidental means to travelers or pedestrians, subject to all conditions herein stated.\u201d Then on the face of the policy in bold letters are the words \u201cIndustrial travel and pedestrian policy.\u201d In much finer print, in the body of the policy, are the words which we have copied heretofore. Then, in another place in the policy there is a provision that each clause in the policy \u201cis to be given its full and literal meaning.\u201d The \u201cfull and literal meaning\u201d of the clauses here involved lead to the possibility of interpretation which we have stated herein \u25a0concerning appellant\u2019s first and second contentions. We cannot make the contract for the parties. We only say that the policy here is susceptible of the \u201cfull and literal meaning\u201d claimed by the appellee; and \u201cfull and literal meaning\u201d is the yardstick by which the policy states that liability is to be measured.\nFinding no error, the judgment of the circuit court is in all things affirmed.\nMoHaney and Holt, JJ., dissent.", "type": "majority", "author": "McFaddin, J." } ], "attorneys": [ "Sydney F. Keeble and Moore, Burrow, Ghowning <& Hall, for appellant.", "Kenneth G. G of felt, for appellee." ], "corrections": "", "head_matter": "Life & Casualty Insurance Company of Tennessee v. Kinney.\n4-7221\n177 S. W. 2d 768\nOpinion delivered February 14, 1944.\nSydney F. Keeble and Moore, Burrow, Ghowning <& Hall, for appellant.\nKenneth G. G of felt, for appellee." }, "file_name": "0804-01", "first_page_order": 824, "last_page_order": 830 }