Gant v. Provident Life & Accident Insurance

Connoe, J. Only one question is presented for decision by defendant’s several assignments of error on this appeal: Was the bodily injury, which all the evidence shows was sustained by her on 10 January, 1927, the result of plaintiff “being struck ... by a moving automobile” ? Unless this question can be answered in the affirmative, it must be conceded that plaintiff cannot recover in this action. Defendant is liable to plaintiff only under the terms of the policy; if the injury which she sustained is not included within the terms of the policy, plaintiff cannot recover. There was no evidence at the trial tending to show that plaintiff in fact was struck by a moving automobile, and thereby injured; all the evidence tended to show that she was struck by a plank. Can the language of the policy be so construed by the court that it may be held, upon all the evidence, as a matter of law, that plaintiff was struck by a moving automobile, because the evidence shows that she was struck by a plank which was thrown against her by the revolving wheel of an automobile ? If the language of the policy is uncertain or ambiguous, and is susceptible to more than one construction, the court will adopt .and apply that construction which is most favorable to the insured. If, however, there is no uncertainty or ambiguity in the language of the policy, there is no occasion for judicial construction; the rights and liabilities of the parties must be determined in accordance with the plain, ordinary, and popular sense of the language which they have used in their contract. Penn v. Insurance Co., 158 N. C., 29, 73 S. E., 99. In the instant case the liability of the defendant under the policy which plaintiff accepted, is expressly limited by language which is free from uncertainty or ambiguity. This language, therefore, cannot be so construed as to enlarge defendant’s liability, in order that plaintiff may recover upon the facts shown by the evidence. As there 'was no evidence *125 from which the jury could find that plaintiff was injured by “being struck by a moving automobile,” we must hold that there was error in the refusal of the court to allow defendant’s motion, at the close of the evidence, that the action be dismissed as upon nonsuit. To the end that the action may be dismissed, in accordance with this opinion, the judgment is Reversed.