United Ins. Co. v. Pennell

CRAMER, Justice. Appellee Pennell filed this action against appellant United Insurance Company to recover monthly disability benefits, plus double indemnity benefits, attorney’s fees, costs, etc., under an accident and health policy issued by appellant. It is undisputed that the policy provided for payment at the rate of $100 per month, not to exceed five years, for accidental injury resulting in total loss of time, and double that amount “ * * * if ‘Such Injury’ is sustained by the Insured (1) while driving or riding within any private passenger automobile exclusively of the pleasure car type as an owner or passenger, * * * if the injury causing the loss is due directly to the damaging of such automobile or passenger car.” In answer to special issues the jury found in substance: (1) That on or about October 12, 1948, at that time, place, and occasion alleged, plaintiff sustained bodily injuries; (2) solely from an accident; (3) [603] which caused his inability to perform each and every duty pertaining to his occupation as a U. S. rural mail carrier; (4) beginning October 12, 1948; (5) which was permanent; (7) that the jeep “was a private passenger automobile exclusively of the pleasure car type”; (8) that a reasonable attorney’s fee for the prosecution of the suit is $2,500; (9) that appellee’s injuries did not cause him to be only partially disabled; (10) his injuries did not result in whole or in part from the disease of arthritis; and (11) did not result in whole or in part from the disease of arthritis unconnected with any accident. Upon this verdict the trial court entered judgment for appellee for $200 per month from date of the accident to date of the trial, after allowing credit in amount of $1,200 heretofore paid by appellant to appellee, but plus $2,500 attorney’s fee and penalty on past due installments. Appellant took the position throughout the trial that the jeep involved is not a private passenger automobile “exclusively of the pleasure car type.” Appellee contended that the jeep under the conflicting evidence was found by the jury to be a passenger automobile “exclusively of the pleasure car type”; and therefore such jury finding settled the question. On this appeal appellant’s first point asserts that, as a matter of law, the double indemnity provision in its policy did not cover the accidental injury received by ap-pellee in the jeep he was driving at the time in question. It is undisputed that at the time of the accident and injury, insured was a rural mail carrier and was discharging his duties as such while driving a “jeep” automobile. The origin, purpose, use, and detailed description of the army jeep is set out in detail by Chief Judge Marvin Jones of the U. S. Court of Claims in Union Pacific R. Co. v. United States, D.C., 91 F.Supp. 762, 765, which opinion is referred to for such information. Such case is only an authority that, for freight rate purposes, the jeep is primarily a passenger vehicle rather than one primarily for freight cargo purposes. But appellee insists that such case is controlling here. Each case is controlled by the facts therein involved and the material questions at law as applied to such facts. The Court of Claims, in the Union Pacific case, was considering the primary purpose of the jeep there involved. The army technical manual quoted therein as to the army’s purpose in its use of the jeep is as follows: “Purpose: To carry personnel, primarily for reconnaissance; to transport light cargo ; to tow 37 mm. anti-tank gun. * * ” The opinion has appended thereto a picture of the War Department model jeep which differs but slightly from the peacetime jeep involved here. The manufacturer’s ad introduced in evidence shows many uses for the jeep in farm work, — such as a tractor for pulling plows, harrows, cultivators, for pulling a trench digger, as motor power for a buzz saw, as a fire engine, and trailer; and points out its universal use for many purposes. In the case relied on by appellee the Court of Claims, in connection with the use of a jeep, held as follows: “The defendant insists that the vehicle is primarily a cargo truck. In a well-prepared and helpful brief it argues strongly the comparatively heavy chassis and many other features. It is persuasive but not quite persuasive enough in the light of the background, purpose, and needs of the army. True, it was used for hauling, but that does not necessarily make it primarily a cargo truck. * * * It is difficult to classify the jeep. It served many purposes. It did much hauling during the war period, both of men and materials. * * The design called for a speed of 55 miles per hour. It had seats for four passengers. It had no sideboards and very little cargo space. In combat areas it was used a great deal for hauling supplies to the front, but that was frequently by attached trailer, which on arrival would be detached and the jeep used as a passenger vehicle. Outside combat areas it was used largely for passenger transportation. * * * [604] Surely the jeep was used for hauling. It was in many respects an all-purpose car. The army called it a truck, but that is not very persuasive, since the army called all wheeled vehicles trucks, including passenger cars, except the sedans. It was greatly used for hauling light equipment, especially in the combat areas. But it was used all over France, North Africa and India, the South Pacific and everywhere the army went, both in combat and noncombat areas, by all soldiers from the private to the top general, as a passenger car. It was not a streamlined luxury creation, but it was especially useful in rough terrain where the sedans, motorcycles, and other passenger cars could not go. “We find that the wartime jeep was primarily a passenger car.” Under the record here, the jeep was used by appellee both for the carrying of the mail on his mail route and for all purposes as a family car at home by himself, his wife and his family, such as going to and from church, general transportation of his family and all general household transportation purposes; and in our opinion cannot as a matter of law be classified as a private passenger automobile “exclusively of the pleasure car type” or “exclusively of the truck type,” or “exclusively of the freight-carrying type.” We are of the opinion, as held by the Court of Claims in the Union Pacific case, supra, that the jeep is an all-purpose car. Like the mule, it is a hybrid; it is neither exclusively a pleasure car type automobile nor exclusively a freight-carrying type, but a combination of all. In this case the Insurance Company, as held in Dirst v. Aetna Life Ins. Co., 232 Iowa 910, 5 N.W.2d 185, 189, was entitled to define the limits of its liability. Such case holds as follows: “In following the foregoing pronouncement, this court in effect held that the term ‘passenger elevator’ would not be interpreted as meaning 'passenger type elevator’ because, if the insurance company intended such a limitation upon the term, it would have been very easy to express the exact meaning desired. The thing that distinguishes that case from the one now before us is that here the insurance company did the very thing that the Royal Union failed to do there. Here it definitely provided that, not only must the injury be received while operating a ‘passenger automobile’, but also it must be ‘of the pleasure car type’. Clearly the Boles case does not decide the question which now confronts us. “The case of Lloyd v. Columbus Mut. Ins. Co., supra, [200 N.C. 722, 158 S.E. 386] is the only case cited to us, or which we have been able to find, where the insurance company took the precaution to limit its insuring clause to a pleasure car type of automobile. Accordingly, it is the only case directly in point. We are in accord with the holding there made. Here the parties have made their contract. We must see that it is enforced as made. The insurance coverage was limited definitely, specifically to injuries involving a passenger automobile ‘of the pleasure car type’. The automobile involved herein is not of that type. The evidence is clear and undisputed. The court should have so held as a matter of law.” See, also, Spence v. Washington National Ins. Co., 320 Ill.App. 149, 50 N.E.2d 128; U. S. Fidelity & Guarantee Co. v. Baldwin Motor Co., Tex.Com. App., 34 S.W.2d 815, Syl. 4, and cases there cited. We therefore sustain appellant’s first point, which point is decisive of the case,, and hold as a matter of law that the jeep' involved here is not a private passenger automobile “exclusively of the pleasure car type” and therefore not within the-coverage of the double indemnity provision of the policy. Such holding makes unnecessary a discussion of the other questions raised in the briefs. The judgment below is therefore reversed and judgment, is here rendered that appellee take nothing by this suit on the double indemnity provision of the policy. Since there was nothing due and unpaid on the other provisions, of the policy at the time this suit was filed, our holding does not affect the rights of' appellee as against appellant on such policy for sums due under other provisions of the policy, and this judgment is therefore without prejudice to sums as have or will become due since the filing of this suit,. [605] other than on the double indemnity clause involved here. Reversed and rendered.