United States Fidelity Guaranty Co. v. Hearn , 233 Ala. 31 ( 1936 )

In view of another trial, it may be observed that there are exhaustive briefs on both sides on the question whether or not, at the time of the accident, the automobile in which the injured parties were riding was being used for carrying passengers for a consideration, or was rented to others, or used for livery purposes, within the excluded obligations of the policy.

The pertinent provisions of the policy are: "This policy shall exclude any obligation of the company" under the contract agreements "while any disclosed automobile is being rented to others or used for livery purposes or for carrying passengers for a consideration." If any of these material alternatives or conditions existed within the meaning of the contracting parties, at the time of the injury, then liability or indemnity therefor is not within the coverage of the policy issued by complainant.

The rule of a strict construction, and that obtaining as to ambiguous provisions in such policies, are well understood or declared in this jurisdiction (Equitable Accident Insurance Co. v. Osborn, 90 Ala. 201, 9 So. 869, 13 L.R.A. 267; Illinois Automobile Ins. Exch. v. Southern Motor Sales Co., 207 Ala. 265,92 So. 429, 24 A.L.R. 734; Gilliland v. Order of Ry. Conductors of America, 216 Ala. 13, 112 So. 225; Inter-Ocean Casualty Co. v. Foster, 226 Ala. 348, 147 So. 127); and the rule of a strict construction applied in this case.

The word "used," considered as to facts falling within a statute in Ex parte Smith (Smith v. State), 212 Ala. 262,102 So. 122, affords a slight analogy for the determination of the material question presented.

In Armistead v. Lenkeit et al., 230 Ala. 155, 157,160 So. 257, 259, this court, in dealing with a common enterprise and liability required of a common carrier of passengers for hire, says: "Obviously, an arrangement by which the car owner agrees in advance to transport another on a trip, which both wish to take, each contributing thereto, one by furnishing the car and driving it, and the other furnishing gas and oil, does not impose on the driver the degree of care required of a common carrier of passengers. Neither does it impose the same obligations as a private carrier for hire, save in so far as like duties arise from the intendments of the relation." This is contrary to the Virginia rule cited by appellant: Cartos v. Hartford Accident Indemnity Co., 160 Va. 505, 169 S.E. 594,597; Sleeper et al. v. Massachusetts Bonding Ins. Co.,283 Mass. 511, 186 N.E. 778; 81 I.L.J. 1139.

In Gross et al. v. Kubel et al., 315 Pa. 396, 172 A. 649,95 A.L.R. 146, also cited by appellant, the arrangement for compensation under which the car was being used at the time of the accident amounted to, not only reimbursement for gas and oil, but additional compensation for the use of the car. This is not the effect, however, of a co-operative enterprise for conveyance, where parts of the contribution to the expense of ways and means were made by some of the parties to the joint or co-operative enterprise in money and part by another in the form of his car and personal services in its operation to the others. The expression "joint adventure" has often been defined by this court, rendering it unnecessary to again set forth its meaning; so, also, of the duty of drivers to guests or passengers in a car where that relation exists. Whiddon v. Malone, 220 Ala. 220,124 So. 516; Morgan Hill Paving Co. v. Fonville, 218 Ala. 566,119 So. 610; Van Heuvel v. Roberts, 221 Ala. 83,127 So. 506; Lunsford et al. v. Shannon, 208 Ala. 409, 94 So. 571; Bentley-Beale, Inc., v. Wesson Oil Snowdrift Sales Co.,231 Ala. 562, 165 So. 830.

If it be said that Hearn's living expenses on the trip were to be paid from the moneys jointly contributed by the co-operating companions or coadventuring parties, it is obvious that all the parties thereto agreed and intended that Hearn's contribution to the joint enterprise was his car and his personal services, and that this would equal the amount of money and services to be contributed by the other joint adventurers. And the payment of Hearn's living expenses on the trip, if made, was an incident and not a consideration of the carriage, and required equal contributions to be made on the part of others. The same may be said of the respective contributions of personal services in driving.

We find no case exactly like this. Each enterprise or adventure is to be judged on its particular facts.

When McCoy Hearn and his companions left Alabama for Rose Bowl to see the football game, all the parties who went were engaged in a common enterprise or joint adventure for pleasure, and to that end the automobile was being used at the time of the injury. That is, as the case stands, the automobile was not shown to be used at the time in question within the reservations or exclusions of obligation of the company which we have set out above.

The foregoing is not intended to foreclose either of the parties on any question of fact and liability thereon. That is, the construction of the policy is based upon the averments of the bill and not upon the affidavits.

The application for rehearing is overruled.

All the Justices concur in what is declared on rehearing.