Fidelity Union Casualty Co. v. Posey , 178 Ark. 1017 ( 1929 )

STATEMENT BY THE COURT.

This appeal is prosecuted from a judgment of recovery against appellant upon a policy of insurance for accidental injury sustained by appellee while cranking a truck.

Appellee, a salesman for the Chero-Cola Bottling Company, suffered the injury on the 5th of September, 1927, while the policy was in force. He stated: "I was cranking my car between Peace and Rison when I was injured. I was meeting another car, got out to one side, that put my left wheel in the right rut, and, in pulling out, the car skidded a little, and I killed my engine. I got out, reached down, got the crank, pulled up on it, and when I did that, my foot gave way, and I fell on the front of the radiator." Stated he was ruptured, and could not do anything until after his operation, and never performed any duties relative to his employment until about the first of the year 1928. He was confined to the hospital three days, and totally disabled until the 23rd of November. Had had no such injury before cranking the car. He was using at the time a Ford one-ton truck which did not have a starter.

The policy provides and insures Alfred Francis Posey "against losses and disabilities hereinafter specified, which result, exclusively of all other causes, from accidental bodily injuries sustained by the insured * * * while operating, driving, riding in or on, demonstrating, adjusting, or cranking an automobile * * *." Provides also for payment of a weekly indemnity of $25 for total disability not exceeding 32 weeks, and weekly indemnity of $12.50 for partial disability not exceeding 8 weeks, but that indemnity shall not be paid for more than 32 weeks combined total and partial disability. It contained the limitation (part 4, E), "this insurance does not cover (E) while driving or riding in or on any motorcycle, automobile truck, tractor or aircraft."

The answer denied the allegations of the complaint, and alleged that the risk sued on was not covered by and excluded from the terms of the policy.

The jury returned a verdict of $288.55 in favor of appellee, and from the judgment thereon the appeal is prosecuted. Appellant insists that the court erred in not giving its requested peremptory instruction directing the jury to find in its favor, the policy excluding recovery on account of accidents suffered by insured while driving a motor truck.

The undisputed testimony show's that appellee was injured while cranking the car or truck — was out on the ground attempting to start it by turning the crank when the injury was sustained. The policy expressly insures against accidental injuries sustained while operating, driving, riding in or on, demonstrating, adjusting or cranking an automobile. This language necessarily covers and insures against the risk attending upon cranking an automobile, unless it is so limited by said part 4, E, as not to do so. This exception relates only to injuries received while driving or riding in or on any motorcycle, automobile truck, tractor or aircraft, and is not in conflict with or repugnant to the insuring clause covering the risk of bodily injury sustained while cranking an automobile. Since the risk from cranking an automobile is covered expressly and since the exemption or exception is not broad enough or sufficiently specific to exempt the company from liability for injury received from cranking an automobile truck, it necessarily follows that the court did not err in refusing the request for a peremptory instruction. English v. Shelby, 116 Ark. 212, 172 S.W. 817.

We find no error in the other instruction complained of, and the evidence is sufficient to support the judgment, which must be affirmed. It is so ordered.