Jones v. Federal Life Insurance
Jones v. Federal Life Insurance
Opinion of the Court
delivered the opinion of the court.
Plaintiff in error, to whom we hereinafter refer as insured, sued the insurance company, hereinafter designated as insurer, seeking recovery for injuries sustained while riding on the rear seat of an automobile. Insurer denied liability. After insured had answered certain interrogatories filed by insurer, the court entered summary judgment in its favor. Insured brings the cause here, seeking reversal of the judgment.
The insured owned a limited coverage accident policy issued by insurer under date of April 2, 1925, providing for payment of an annual premium of $1.00. There was provision for certain lump sum payments for specific losses. The policy also contained a clause reading: “If the insured shall be immediately and wholly disabled by the means and under the conditions as set forth in Parts I, II or III and be prevented by injury so received from performing every and any duty pertaining to her or his usual occupation, the Company will pay for a period not exceeding 15 consecutive weeks accident indemnity at the rate of $10.00 per week.” The coverage provided in Parts I and III is not applicable here. Part II, which it is claimed is applicable, reads: “(a) By the wrecking or disablement of any Public Omnibus, Taxicab, or Automobile Stage plying for public hire, which is being driven or operated at the time of such wrecking by a licensed driver, and in which such Insured is traveling as a fare-paying passenger; (b) or, by the wrecking of any private horse-drawn vehicle, or private motor-driven car in or on which the Insured is riding or driving, or by being accidentally thrown from such vehicle or car; (c) or, by the wrecking of any passenger elevator (elevators in mines excepted) in which the insured is riding as a passenger.”
Under the agreed statement of facts, it appears that insured, as a passenger, was sitting on the rear seat of an automobile at the time she incurred injury; that “Said automobile struck a raised pile of dirt in the street, throwing plaintiff from the seat through the air to and against the top of said automobile, and plaintiff then fell back through the air and came to rest in a position against the edge of the seat and against the front seat and against the floor of said automobile. That the object her body came into contact with which caused her injuries was, in plaintiff’s opinion, the top part of said automobile. That said object was inside of said automobile. That she was thrown from said automobile. That after said automobile struck the raised portion of street, she was not at any time outside of said automobile before it stopped, but was injured as aforesaid by being thrown from the seat of said automobile upwards through the air.”
It also was stipulated and agreed that insured’s right to recover under the policy is by virtue of the coverage provided in that portion of Part II, sub-section (b), reading as follows: “or by being accidentally thrown from such vehicle or car.”
Both of the two specifications of points are grounded on the proposition that insured was accidentally thrown from the automobile in which she was a passenger.
Counsel for insured argues that the year 1925, in which the policy was issued, marked the transition period from “open touring cars to the closed car type”; that under the latter type, the clause, “thrown from” an automobile, “must mean being thrown from that part of the car on which the insured is riding”; that in the instant case insured “was clear of the car for a brief time,
The principal case upon which insured relied, both in the trial court and here, is Steavens v. Federal Life Ins. Co., 255 Mich. 95, 237 N.W. 388, in which recovery was allowed by a five to three decision against the same insurer, defendant in this case, under a clause which protected against being thrown accidentally from a véhicle. In that case insured was driving a horse-drawn corn binder which hit a stone, throwing him from the driver’s
We do not feel that that case controls; nor do we find the following cases, upon which counsel for insured relies, applicable. In Continental Life Ins. Co. v. Wilson, 36 Ga. App. 540, 137 S.E. 403, a driver fell off a wagon loaded with logs and, while still lying on the road, was crushed by a log rolling off the load and falling upon him. Recovery of damages was resisted on the ground that insured was on the cart, and not in it. It was held that, for the purposes of the case, the prepositions on and in were synonymous.
Wright v. Aetna Life Insurance Co., 10 F. (2d) 281, was a case in which the insurance policy covered an accident occurring while insured was riding in an automobile. The auto went out of control and insured either jumped or was thrown from the car. Recovery was allowed. Recovery also was allowed in Federal Life Ins. Co. v. McAleer, 161 Okla. 251, 17 P. (2d) 681. In that case the care was on a grease rack, and insurer stepped out on the running board as the rack was rising. A jar caused him to be thrown from the car.
We are of the opinion that the trial court acted properly in denying recovery to the insured in the instant case.
The judgment is affirmed.
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