387, where the plaintiff company sought a declaratory judgment that it was not liable under a policy containing the following clause: " 'Exclusion'. The above distinction is clearly pointed out by the Supreme Court of South Dakota in Sunshine Mut. Thus, in each instance the insurer denied coverage under a "public or livery conveyance" exclusion clause because the named automobile was being used to transport passengers for compensation since the facts of each case established that the transportation, albeit for compensation, was only casual or on a selective (share-the-ride) basis, the named automobile was not a "public conveyance" and the exclusion did not apply. It appears, however, that in all of such cases the court was not confronted with the exact situation here, namely, a conveyance of freight as against a conveyance of passengers. 2 which not only hold that the phrase in question is not ambiguous but, on the contrary, assertedly determine that the subject language conveys the meaning contended for by her. Invoking the rule that an insurance policy should be construed most strongly against the insurer, as well as the companion principle that any ambiguity should be resolved against the company, appellant further points out that exceptions or exclusions in a policy are particularly governed thereby since the insurer is under an obligation to spell out any such provisos in clear and unmistakable language. The exclusionary clause in the policy issued by defendant company provided that the indemnity did not apply where death resulted from bodily injury sustained while engaged "in duties incident to the operation, loading, or unloading of, or as an assistant on, a public or livery conveyance." The issue, then, is whether a common carrier of freight is a "public or livery conveyance."Īppellant contends that the term above quoted applies only to the transportation of passengers for hire and not to the hauling of freight respondent, on the other hand, argues against such limited exclusion. In view of his employment as brakeman, it was stipulated (in addition to other matters not here relevant) that the duties which decedent was then performing were incident to the transportation, loading and unloading of freight it was further stipulated, however, that such duties were not incident to the operation of loading or unloading of passengers. The sole issue is whether the trial court properly construed a certain exclusionary clause in the policy.ĭecedent's death was proximately caused by a collision between a freight train, of which he was a crew member (brakeman), and a truck-trailer loaded with gasoline. Plaintiff appeals from judgment entered for defendant. The cause was submitted for decision on a written stipulation of facts. Plaintiff sought recovery of $5,000 under defendant's policy which indemnified her for the death of her husband. Rothschild for Plaintiff and Appellant.īutterworth & Smith, Edward L. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Respondent.īodle & Fogel, Daniel Fogel, Stephen Reinhardt and Loren R.
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