Opinion
17141.
JULY 12, 1950.
Certiorari; from Court of Appeals. 81 Ga. App. 276.
E. C. Brannon and Smith Stephens, for plaintiff.
O. J. Tolnas and Preston M. Almand, for defendant.
1. While it is the general rule that ambiguities in an insurance contract must be construed most favorably to the insured, this rule has no application when the contract is unambiguous.
2. It is the general rule that, when considered on demurrer, pleadings must be construed most strongly against the pleader, and the absence of averments of essential facts and reliance by the pleader upon allegations short of such facts require a holding that they did not exist.
3. The petition in the present case — seeking recovery under an insurance policy which provided for payment in the event of death by accident while the insured was traveling on a passenger steamship as a fare-paying passenger or on a lawful pass, and alleging merely that the accident resulting in death occurred while the insured was lawfully riding on a motor launch as a passenger from shore to the U.S. S. Kearsage — failed to allege a cause of action; and the Court of Appeals did not err in reversing the judgment of the trial court, which overruled a general demurrer to the petition.
No. 17141. JULY 12, 1950.
George P. Hulsey filed suit in the City Court of Hall County against Interstate Life Accident Insurance Company, alleging himself to be the nominated beneficiary of an insurance policy issued by the defendant. The petition alleged that the petitioner was the named beneficiary in a policy issued by the defendant to Homer Lee Norris, now deceased, which policy was attached to the petition and made a part thereof, and contained the following clause: " . . if the insured shall by the collision of or by any accident to any railroad passenger car, passenger steamship, public omnibus, street railway car, taxicab or automobile, stage or bus, which is being driven or operated at the time by a person regularly employed for that purpose, and in which such insured is traveling as a fare-paying passenger or on which he is lawfully riding on a pass; . . the company will pay . . to the beneficiary named herein. . . For Loss of: Life . . Two Thousand Dollars." It was alleged: that the insured was, on May 31, 1948, killed by the capsizing of a motor launch at Hampton Roads, Virginia, his death resulting solely through external, violent, and accidental means; that said motor launch was transporting the insured from the shore to the U.S. S. Kearsage, was a passenger steamship, and the insured was lawfully riding thereon; that the insurance policy was in full force and effect at the time death occurred; that the motor launch was a boat provided by the U.S. Navy and used primarily to transport as passengers members of the ship's company of the U.S. S. Kearsage from ship to shore and from point to point within the naval sea area, and it was, at the time of the accident, being operated by personnel regularly employed for that purpose; that after the accident visible and external evidence thereof was afforded by reason of the motor launch being flooded, overflowed, and filled with water; that the petitioner has, as required by the policy, duly filed with the defendant notice and proof of death of the said Norris, and the defendant has denied liability upon the ground that Norris was not on a passenger steamship nor any other conveyance set out in the contract at the time of death. The prayer was for a judgment of $2000, as provided in the policy, with interest thereon.
The trial court overruled the defendant's general demurrer to the petition and, on review, the Court of Appeals reversed the judgment of that court. The application of the petitioner to the Supreme Court for a writ of certiorari was granted, and we now have for review the judgment of the Court of Appeals.
The clause of the policy under which liability is claimed expressly requires that the boat upon which the insured was traveling must have been a passenger steamship, and that the insured must have been traveling thereon either as a fare-paying passenger or a passenger riding on a pass. Since this is a case involving insurance policies, we must and do give full consideration to the rule of law that requires that all ambiguities be construed most favorably to the insured. Sovereign Camp W.O.W. v. Heflin, 188 Ga. 234 ( 3 S.E.2d 559); Aschenbrenner v. U.S. Fidelity c. Co., 292 U.S. 80 ( 54 Sup. Ct. 590, 78 L. ed. 1137). This rule, however, does not require courts to violate another rule which forbids construction by the court of unambiguous language. In all such cases courts must conform to Code § 56-815, which declares that "The contract of insurance should be construed so as to carry out the true intentions of the parties." Nor do we think that the rule would justify a strained construction that would convert the unambiguous words, "passenger steamship," into the equally unambiguous words, "motor launch." To the extent that the decision in The Ida B. Conway, 22 F.2d 182 — which held that a schooner propelled by a motor boat attached to its stern was a steam vessel — might tend to suggest such construction, we would refuse to follow that opinion upon the ground that we regard it as unsound. While the petition here alleges that the motor launch was provided by the Navy and used primarily to transport as passengers the members of the ship's company of the U.S. S. Kearsage from ship to shore and from point to point within the naval sea area, it does not allege that the motor launch belonged to the U.S. S. Kearsage as a part of its equipment. The pleaded facts, therefore, would not justify an application of the rule announced in The Manila Prize Cases, 188 U.S. 254, that the word "ship" embraces her boats, tackle, apparel, and appurtenances because they are a part of the ship as a going concern. The fact that the petition is based upon an insurance policy, and any ambiguities must be construed most favorably to the insured, does not relieve it from the rule of law requiring a strict construction against the pleader when considered on demurrer. The decisions of this court, applying that rule, are too numerous to cite, and we cite only Frazier v. Southern Ry. Co., 200 Ga. 590 ( 37 S.E.2d 774). Under this rule when a pleading is considered on demurrer, if inferences unfavorable to the rights of the party claiming rights may be fairly drawn from the allegations of the petition, this must be done. Krueger v. MacDougald, 148 Ga. 429 ( 96 S.E. 867); Hardin v. Baynes, 198 Ga. 683 ( 32 S.E.2d 384); Toler v. Goodin, 200 Ga. 527 ( 37 S.E.2d 609). This rule requires that in such a case pleadings be construed in the light of their omissions as well as their averments. Toney v. Ledford, 184 Ga. 856 ( 193 S.E. 761); Mackler v. Lahman, 196 Ga. 535 ( 27 S.E.2d 35); Toler v. Goodin, supra. Failure to allege the essential facts by allegations that fall short of the essential facts must be construed to mean the absence of such essential facts. Harrell v. Burch, 195 Ga. 96, 98 ( 23 S.E.2d 434).
In order to recover at all in the present case, it was essential to allege and prove that death occurred while the insured was traveling on a passenger steamship. The averment in this connection falls short of this essential, and merely alleges that he was traveling upon a motor launch. The rule requires a construction that he was not traveling on a passenger steamship. It was also essential that he be traveling either as a fare-paying passenger or on a lawful pass. The allegations relied upon to meet this essential are that he was "lawfully riding thereon." Whether or not his travel was lawful is a question of law depending upon facts, which are not given, and the conclusion of law made by this pleading must be disregarded when considered on demurrer. There is nothing in the petition to indicate whether the insured was, at the time, in the Naval Service of the United States; nor does it even appear whether he was a member of the crew or a passenger of the U.S. S. Kearsage. The sum total of the allegations shows only that he was riding upon a motor launch as a passenger. For the two-fold reason, (1) the insured was not riding on a passenger steamship, and (2) he had neither paid a fare nor was he traveling on a pass when his death occurred, no recovery under the unambiguous provisions of the policy relied upon can be had. The petition was therefore subject to the general demurrer, and the Court of Appeals did not err in reversing the trial court's judgment, which overruled the demurrer.
Judgment affirmed. All the Justices concur, except Wyatt, J., who dissents.