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Sell v. Country Mutual Ins. Co.

JANUARY 13, 1960.




Appeal from the Circuit Court of Coles county; the Hon. HARRY I. HANNAH, Judge, presiding. Affirmed.


The defendant insurance company issued a policy on plaintiffs' 1956 homemade, used 14 ton dump bed trailer. Coverage thereunder included protection subject to certain exclusions against accidental upset as specified in Paragraph 3 of the policy which reads as follows:

"Paragraph 3. ACCIDENTAL COLLISION OR ACCIDENTAL UPSET, including accidental breakage of any plate glass permanently attached to, and forming a part of the structure of the trailer described herein (excluding, however, all loss or damage by fire from any cause whatever and all loss or damage to any tire due to puncture, cut, gash, blowout, and other ordinary tire trouble.) The Company's liability under this paragraph shall not exceed eighty percentum (80%) of the actual cash value of the property at the time of loss and shall be limited to eighty percentum (80%) of the actual cost of the suitable repair of the property damaged."

One of the conditions of the policy was "that the company shall not be liable under Paragraph 3 for damages to trailer described herein caused by any livestock or other property carried in or upon said trailer."

While in the process of dumping a load of sand, the trailer overturned or became upset and was damaged. This action was brought to recover the cost of having the trailer repaired. A jury trial resulted in a verdict and judgment for plaintiffs from which defendant appeals.

Joe Webb, one of the plaintiffs, testified that on the date of the occurrence, he was using the trailer to haul sand from a quarry to the premises of Tuscola Chemical Corporation in Tuscola, Illinois; that prior to the occurrence he had made two trips; that the weight of his load on the first trip was 12 tons and 200 pounds, and that on the second trip it was 11 tons and 800 pounds; that at the Chemical Corporation premises a spotter on the ground indicated the point where the sand was to be unloaded; that when Webb had backed the trailer to such point, he would pull a handle which opened the trailer tail gate and by operating a device in the cab of the tractor he elevated the dump bed of the trailer and the sand would run out; that on the occasion of the first two trips the unloading was accomplished without incident; that on the third trip the trailer carried 12 tons of sand; that in preparing to dump the third load he proceeded in the same manner as he did on the two previous trips; that while he was raising the dump bed and after the sand had started to move, the trailer started to turn over on its right side; that he turned off the motor and jumped out of the cab; that he then observed that under the right wheel the ground was lower than it was under the left wheel; that in his words "I believe the wheels sunk to the right on account I felt the truck go that way, but the truck was already turning when I felt it."

The only other witness who was present when the trailer turned over, was Walter Spaugh, Jr., the spotter who directed Webb in backing the truck to the unloading site. He testified that when the dump bed had raised about 3/4 of the way up, he shouted: "Joe, she's turning over"; that as the sand started coming out of the dump bed the truck started turning over; that at the time of the upset, the bed was in the process of being raised; that after the upset, there remained in the bed a yard and a half of sand out of approximately 6 1/2 or 7 yards.

The record contains a substantial amount of evidence showing the condition of both the trailer and tractor following the upset. In view of the conclusion reached, we regard any detailing of such evidence as being unnecessary.

Defendant insists that plaintiff failed as a matter of law to prove that the occurrence resulting in the loss for which recovery is sought was not excluded from coverage by the provisions and conditions of the policy upon which the action is based and that the trial court erred in refusing to direct a verdict in its favor.

The rule that an insured cannot recover upon a policy of insurance in the absence of proof that the loss claimed comes within the terms of such policy is so well established as to require no citation of authority. In determining whether plaintiffs' evidence met the burden imposed upon them by such rule, consideration will initially be given to the language of the policy specifying the coverage afforded plaintiffs and also of the exclusion clause which defendant claims exempts it from liability.

We agree with defendant that the terms of the provisions under consideration are unambiguous. In such situation they will be taken and understood according to their plain, ordinary and popular sense. Craig v. Central Nat. Life Ins. Co., 16 Ill. App.2d 344; Rubenstein v. Fireman's Fund Ins. Co., 339 Ill. App. 404.

In Paragraph 3 of the policy it is plainly stated that plaintiffs are insured against accidental upset of their trailer including accidental breakage. In equally plain language the policy provides that defendant company shall not be liable under Paragraph 3 for damages:

"(1) To any tire, unless caused in an accidental collision which also causes sufficient other loss or damage to the insured trailer to entitle the ...

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