MARYLAND CAS. CO.
HOFFMAN et ux.
Rehearing Denied Jan. 13, 1953.
[75 Ariz. 104] Darnell, Robertson & Holesapple, Tucson, Richard R. Fish, Tucson, of counsel, for appellant.
Gaynor K. Stover and Ira Schneier, Tucson, for appellees.
This is an appeal from a judgment of the Pima County Superior Court for medical benefits which plaintiffs recovered from defendant under the provisions of an automobile insurance policy written in August, 1949, by defendant upon a certain Mercury automobile manufactured the same year. The policy provided those coverages which are customarily known as public liability, property damage and medical insurance. In this opinion the parties will be referred to according to their designation in the trial court.
Some time after the issuance of the policy in question plaintiffs purchased a small trailer having the following dimensions: 8' 1"' long, 6' 6"' wide and 4' 7"' high. The trailer rested on a single axle having a rigid frame and floor. It was enclosed with aluminum sheeting forming the sides and roof. Its interior was finished in plywood and fiber wall paneling. It had a door on one side through which entrance could be made into the trailer. It had three small windows covered with curtains as well as a small window in the door. In the rear there was a built-in bed of approximately three-fourths width in size; linoleum on the floor; a clothes closet; a built in cabinet containing a small ice box, and miniature drain board and sink to which a water faucet was attached. Drawers and closets were built into the cabinet. There was also a two-burner gas stove. It was wired for electricity and a wall bracket and lamp [75 Ariz. 105] shade were installed. There was on the outside of the trailer a butane gas tank connected with the two-burner stove.
The policy was procured through a Mr. Marquis, a salesman for Davidson Insurance Agency owned and operated by a Mr. W. E. Davidson. Mr. Davidson is the representative agent and attorney in fact for bonds and is the licensed agent of the defendant for insurance. He signs all policies on behalf of defendant issued out of the Tucson office. A great many of the policies are written in the office of the Davidson Insurance Agency.
After purchasing the trailer plaintiffs went to Mr. Marquis and thoroughly described the trailer to him and asked about further insurance in order to be protected on a contemplated trip into Canada and was told that the present insurance with the defendant fully covered the trailer but defendant recommended fire and theft and collision coverages with another company which plaintiffs procured. After ascertaining that the trailer was covered by the policy insuring the Mercury automobile and that their insurance on the Mercury was good in Canada plaintiffs left on a vacation trip for that area.
Between June 15 and June 27 plaintiffs slept in the trailer two or three nights, the last time being on June 27 when the plaintiff Ernest Lewis Hoffman lighted a match while sitting on the side of the bed and an explosion occurred due to a leak in the butane gas pipe which seriously burned both plaintiffs. As a result thereof they incurred heavy medical expenses over a period of weeks while being treated in a hospital at Edmonton, Canada, the amount of which was stipulated by counsel to be $2,000 and $1,026 respectively for plaintiffs Ernest Lewis Hoffman and Ara Hoffman, his wife. There is nothing in the record to indicate that the trailer was used at any time for cooking purposes or that there was any supply of groceries carried along for that purpose. The testimony of the plaintiffs was to the effect that they stayed in motels and hotels and slept on cots beside the trailer except when it rained and on the particular night of the explosion they slept inside on account of mosquitoes. The testimony shows that the trailer was filled with luggage and other equipment including three extra cans of gas, one can of water, two cots and pillows, two sleeping bags, shovel and pick, etc., which the parties used on the trip, and which had to be removed before they could get in the trailer to occupy the bed. The trailer to that extent therefore, at the time, was answering the purposes of a utility trailer for the transportation of these various articles used on the trip. Under the terms of the policy however the coverage therein provided was not limited to utility trailers as hereinafter pointed out.
It is necessary to observe at this point that after plaintiffs had left on their Canadian trip, Messrs. Marquis and Davidson of the Davidson Insurance Agency endorsed[75 Ariz. 106] a rider on plaintiffs' policy for bodily injury and property damage as a precautionary measure in the event the trailer should be held by defendant to not be covered by the policy on the Mercury automobile. This rider was attached primarily to keep alive the policy on the Mercury for plaintiffs' protection in the event of an accident and injury to them. Plaintiffs knew nothing about this rider and included in their action against defendant a count for the recovery of the premium paid by their son. The lower court directed a verdict in favor of plaintiffs for the recovery of said premium. The appeal is from the whole of the judgment and from the order denying defendant's motion to vacate and set aside such judgment and from the order denying its motion for a new trial.
Defendant presented two assignments of error based (1) upon the court's failure to give defendant's instructions 8, 10, 11, 17 and 20 which it claims defined 'home' and 'home trailer'; and (2) upon the ground that the evidence was insufficient for the jury to come to the conclusion that plaintiffs' trailer was not a home trailer within the meaning of the insurance contract.
The answer to these questions depends upon the interpretation given the insurance contract specifically relating to the definition of automobiles and trailers and upon the evidence adduced at the trial relative to the character or classification of the trailer in question.
The policy defines automobiles and trailers in the following language:
'Automobile Defined, Trailers, Two or More Automobiles, including Automatic Insurance.
'(a) Automobile. Except where stated to the contrary, the word ...