Johnson v. Glens Falls Ins. Co.

127 S.E. 14, 131 S.C. 253, 40 A.L.R. 993, 1925 S.C. LEXIS 118

• Court: Supreme Court of South Carolina
• Decided: March 14, 1925
• Docket: 11717
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Cothran.

The action is based upon a policy of insurance, by which the company undertook to indemnify the insured from loss or damage to an automobile, resulting from certain enumerated perils. The case is, therefore, to be decided upon two •considerations : (1) The circumstances under which the Injury complained of occurred; and (2) whether the injury was a result of a peril insured against by the terms of the policy.

The circumstances of the injury are concededly beyond controversy. In the early hours of the morning, some time between midnight and 4 o’clock in the morning, Johnson arrived at the Yahannah Ferry, over Pee Dee River; he was driving his car, and a colored man sat with him on the front seat; Johnson aroused the ferry man, who came down to put him across; the end of the boat rested on the near bank, and Johnson was directed to drive his car beyond the middle of the boat so that its weight would release the end of the boat that was resting on the bank; he did so; and, the boat coming clear, they started across; when they reached about the middle of the steram, Johnson, under the steering-wheel and the colored man by his side, the automobile which was still in gear, for some unexplained cause, suddenly and swiftly moved forward; struck the “apron” of the boat, broke it, and plunged over the far end of the boat into the river; the colored man jumped out of the car onto the boat, and Johnson went over into the river with the car. The “apron” of the boat was an appliance, made of plank, used to make the approach to and departure from the boat more convenient ; it was thrown back onto- the boat when not so used; it was not intended to prevent a car from rolling off the end of the boat; the boat was not equipped with a chain to prevent this. There was no evidence tending to show that there was any defect connected with the boat which in any way contributed to the disaster; on the other hand, it is perfectly clear that the sole cause of it was the improper handling of the car by the plaintiff who was at the wheel and in absolute control of it. Was this the result of a peril insured against by the terms of the policy? The answer must be found in the terms of the policy.

It is alleged in the complaint that the policy insured the plaintiff against the following perils :

“(a) Fire arising from any cause whatsoever and lightning.

“(b) While being transported in any conveyance- — ■ 'stranding, sinking, collision, burning or derailment of such conveyance, including general average and salvage charges for which the insured is legally liable.”

I think that the policy shows upon its face, plainly and without the slightest- ambiguity, that the perils insured against were the stranding, sinking, collision, burning, or derailment of the conveyance in which the automobile was being transported at the time of the injury. The conveyance was a ferry boat; the evidence shows that the ferry boat was not stranded; it did not sink; it was not burned; it did not collide with anything; and, of course, was not derailed. While the automobile was being transported across the river, by improper handling, it suddenly and swiftly, “in the twinkling of an eye” (as the plaintiff testified), moved forward, broke the feeble resistance of the “apron”, and plunged over the end of the boat into the river. How this catastrophe can be charged to the stranding, sinking, burning, collision, or derailment of the ferry boat, against which perils alone the plaintiff was insured, none of which happened, I cannot conceive.

That these terms are referable to the conveyance in which the transportation was being effected, and not to the automobile which was being transported, appears to me too plain for discussion. It is fundamental that all of. the terms of a contract shall be considered and given effect if possible, and, if it should be held that, notwithstanding the obvious limitation, the policy covered all loss during transportation, no matter how caused, we read into the contract something that is not there, and annihilate something that is. The reference to “general average” and “salvage”, terms applicable to water transportation, leave no doubt that stranding, etc., referred to the conveyance.

I do not at all appreciate the force of the suggestion in the opinion of Mr. Justice Fraser that, because the policy exempts the company from liability in case the automobile shall “be used for carrying passengers for compensation, or rented, or-leased,'or operated in any race or speed contest, during the term of this policy,” such a limitation would be without meaning if the other limitation in the policy that the perils insured against, were only fire, lightning, and stranding, etc., of the conveyance, be given effect. No valid reason, to my mind, has been suggested why both limita tions snould not be given effect; they certainly are not inconsistent with each other. It is entirely'possible that the conveyance in which the automobile was being transported stranded, sunk, collided, burned, or derailed, and yet, if the automobile at the time was being used for carrying passengers for compensation, or rented, or leased, or was being operated in any race or speed contest the exemption would ■ apply.

I also fail to appreciate the force of the suggestion:

“Besides this, the jury might have come to the conclusion that when the flat was at the landing, the end next to the shore was resting on the bank, i. e., that end stranded; that when the automobile (a very heavy rar) was driven onto the flat, it was driven close to the other end, so as to lift up the shore end, and lower or sink the other end, and the forward end being lower, the attraction of gravitation drew the car off into the water.”

I do not see the slightest ground'for such an inference; the jury could not have been justified in imagining such a conclusion, in view of the admitted fact, testified to by the plaintiff, that the car moved off while the boat was in midstream, after it had righted itself, and there is no evidence tending to show that the movement of the car off of the boat was due to the extreme forward position of the car or that that position caused more than a momentary depression of the forward end as the boat left its mooring. The defendant’s motion for a directed verdict should have been granted.

It is accordingly adjudged that the judgment of the Circuit Court be reversed and the cause remanded for the entry of judgment in accordance with Rule 27 of this Court. ■

Mr. Justice Marion and Mr. Acting Associate Justice A. M. Bumpkin concur. Messrs. Justices Watts arid Fraser dissent. Mr. Chief Justice Gary did not1 participate.