*1 STATE FARM MUTUAL AUTOMOBILE INSURANCE v. Lula Martha COMPANY TRAYLOR 77-234 delivered March
Opinion Banc) (In P.A., & for Laser, Huckabay, Sharp, Young Haley, appellant. Donovan,for & appellee.
Ray court, Holt, The as a jury, Frank sitting Justice. $5,000 the terms death benefits awarded pursuant dece- issued to insurance appellee’s of an automobile policy of the trial asserts the dent judgment by appellant. Appellant evidence. court is not supported from death resulting provided coverage policy In coverage, automobile.” denying struck “being *2 of the provides invoked the policy provision appellant sustained is whenever is excluded bodily injury that coverage duties when in of one’s engaged the course occupation “fi]n of, an as or unloading the incident to loading operation, . automobile.” Appellant a ... commercial assistant on his duties in of was the that the decedent performance argues of to incident the which were operation, to the is no substantial evidence support a and there truck was the clause inapplicable. court’s exclusionary finding whether there is any In determining evidence, court, view the the the we to of findings support contradicted, inferences and all reasonable even though the in favorable to therefrom the most deducible light 496, 487 253 Ark. S.W. Green appellee. Harrington, 2d 735 (1972). In S.W. Blissett Frisby, (1970), said: we where there is no substantial evidence to sup- only a verdict, men can draw where fair-minded only the
port or where there no reasonable conclusion contrary incident the that the occurred to according probability a version of the verdict on party, jury prevailing these will be disturbed on appeal. questions “to exclusions in- Courts are to strictly required interpret to in favor surance and resolve all reasonable doubts coverage had of con- of who no in the the insured part preparation Owen, Ins. Co. S.W. 2d tract.” Security Thornton, 250 (1972); and First Ark. Ins. Co. Pyramid Life welder, decedent, as The a of crewa employed part accident, a on a construction On the date project. hoist, truck, and with A-frame used being equipped a the steel beams from stacked position ground transport to site a The beams were then the construction of building. lowered, to an overhead positioned, swung position, crew into other members. The bolted by place duties, man consisted as a on this day, hookup particular a steel cable and a to beam guide guide attaching the beam as it was attached A-frame. This being the beam after attached to the prevented swinging boom. Another crew member would then the beam transport the truck to the truck the construction site. When arrived by the the beam was maneuvered into workers there position and would be them from the guide rope disengaged beam and cast aside. a beam at the site positioning would take at least minutes. It that it would twenty appears take minutes about five for the truck to move from one site accident, the other. At time of the operator truck had of a beam. completed delivery positioning When he was the truck return to the stacked up backing beams, hit depression ground dislodging the A-frame and hoist which struck and killed appellee’s decedent. The deceased was the discarded line *3 rolling up tag or feet from the truck. He was approximately twenty or that he the truck moving unaware completely to him was in until someone shouted warning danger towas no avail. circumstances, In the when we view the evidence most favorable to the on as we must do appeal strictly construe the clause relied we cannot exclusionary upon, say there is no substantial evidence the to fact finder that support clause does not exclusionary conclusively preclude words, of its award benefits. In other recovery the fact finder could infer that the in decedent fairly act in- cidental to the actual or operation, loading unloading truck at the time of exact the fatal incident.
Affirmed.
George Fogleman Smith, Hickman, Rose dis- JJ., sent. I A. am to Fogleman, unable Justice, dissenting. John
see how the find can majority any possibly evidence to the decedent was not support finding in or duties incidentto the loading engaged unloading commercial automobile the time of his fatal at injury. read, treats the exclusion as if it “This insurance majority does not to: apply his course of occupa- in the sustained
(a) injury Bodily in the while operation, engaged tion any person vehicle.” a commercial of ... or unloading loading It doesn’t. the least and is not has a definite meaning
“Incident to” be, it to has taken not, as the majority ambiguous. as the as discarded so as to be surplusage, without meaning, Incident, used in this in the sense of it. has disposed majority or at- related with or “associated naturally means policy, rank)” or law: increased (new duties taching [incident] directly to another thing: “dependent appertaining else in though or involved something immediately relating International 3rd New of it.” Webster’s not an essential part decedent was do- that what the There is no way Dictionary. associated, related, naturally not to be a can be said duty ing the vehicle or attached beams, to the decedent however favorably transporting one view evidence. line, line that had tie
He was tag coiling rope, it he had used to assist guiding been down after thrown on the truck used loaded on the boom transport beam last about 20 feet from He was the beams. standing fell the truck as it the boom that he was struck when *4 another beam. The of for up backing the beams son, crew who was of the putting part truck, around the his said that father working place, on the truck to the boom with beams .and attaching assisting each hooked a line them in The decedent putting place. it while it was transported assist in beam to guiding son, to decedent’s placed. According and properly attached to the would not have been decedent was coiling went another beam. until his father out truck got again decedent, said Green, driver, Gary nephew the truck and hook decedent would tie the steel into that the line. and the and tie the cable to the beams tag the cables up the beam swinging He said the line was used keep tag that testified He the boom on the truck. while attached to for substantial load the had been decedent truck helping time, of all that morning. period
96 the evidence most to the or
Viewing favorably judgment does to the or insurance not company against be mean that should dis- positive, totally undisputed regarded. the fact finder infer could majority fairly says in an act
that the decedent was not
incidental
actual
of the truck at
exact time
operation, loading
he was struck.
however
Conjecture
speculation,
plausi-
ble, cannot
v.
St. Louis
Russell
supply
place
proof.
Co.,
An
Southwestern
113 Ark.
S.W. 135.
inference
Ry.
is not a substitute for evidence.
Coca-ColaBottling
Norfolk
Krausse,
107,
also,
Worksv.
162 Va.
173
497
S.E.
See
Wilson,
165,
v.
194
105
1074.
Green
Ark.
S.W. 2d
The in
of inferences will not
a non-existent fact. Ft.
supply
dulgence
718,
SmithGas Co. v.
2d
S.W.
75. An
Blankenship,
inference
not be
forced
guesswork
Bruner,
allowable substitute.
v.
2d 673 (Mo.
Shelton
S.W.
1969);
Foods,Inc.,
95,
v.
69 N.M.
364 P.
App.,
2d
Shoprite
Gonzales
Metropolitan
Co.,
(1961); Sweeney
v.
Ins.
30 Cal.
Life
767,
Liability upon imagination, conjecture, surmise. Ft. Gas speculation, Smith Co. v. guesswork Comm’n., v. Industrial Corneaux Blankenship,supra; We supra. that a have said fact finder is not to base a permitted judg ment mere but it must upon speculation conjecture, be based facts essential or facts upon testimony which would a reasonable inference such essential justify facts; and that mere cannot substitute for speculation facts, after due all allowance for probative making reasonably inferences whose case is possible attacked. party favoring Davis, also, Wilson, Pac. Missouri R. Co. See Green supra. Louis, Smith, I. St. M. & Co. v. S. supra; Ry. Co., 547; Russell v. St. Southwestern Louis Ft. supra; Ry.
Smith Co. v. Gas Blankenship,supra.
An inference is a deduction be which may logically facts, facts, drawn reason from or a state of ad- proven,
97
Dictionary, DeLuxe
Law
be true. Black’s
mitted or known to
Bottl
Bruner,
Coca-Cola
91
v.
7;
4th Ed.
Shelton
supra;
p.
Norfolk
Cincinnati,
v.
& T.P.
Co.
Krausse,
N.O.
Ry.
v.Works
supra;
ing
432,
(1940);
2d 537
136 S.W.
Adm’r., 281 Ky.
Humphrey’s
685,
983 (1963);
379 P. 2d
Ezzell,
2d
v.
61 Wash.
Thompson
44
Foods, Inc.,
v.
Stambaugh Hayes,
v.
supra;
Shoprite
Gonzales
N.M.
WaterSer
443,
(1940);
640
v.
103
2dP.
California
Juchert
v.
500,
(1940);
2d 886
UnitedStates
Co.,
106 P.
16 Cal. 2d
vice
1968),
393
Grow,
Cir.,
cert. den.
U.S.
(4
F.
182
394
2d
491,
v.
262 Minn.
118,
111;
2d
State
21 L. Ed.
S. Ct.
Meany,
517,
Me.
57 A.
v.
98
(1962);
2d 247
Laughlin,
115 N.W.
Seavey
386,
Fine,
probability
Co.,
v.
Ins.
v. Metropolitan
supra; Wright
supra; Sweeney
Life
v.
supra;
supra.
Seavey Laughlin,
Conway,
no
It
different from
requires
is
supposition,
very
facts,
a
based
only conjecture
upon
proven
premise
the
have
could
idea
thing
happened
possibility
have oc-
notion founded on
probability
thing
Lumber
v.
167 Ala.
52 S.
curred. Miller-Brent
Co. Douglas,
Cincinnati,
& T.P.
(1910);
N.O.
Co. Humphrey’s
Ry.
Adm’r.,
Station v. Industrial Accident
Clapp’s
supra;
Parking
Comm’n.,
(1921);
I would reverse the judgment new trial. Mr. Rose I am authorized to state that George Justice
Smith and Mr.
Hickman
in this opinion.
join
Justice
ARMBRUST,
Allen
ALLEN ARMBRUST
d/b/a
CONSTRUCTION COMPANY v. Val HENRY
77-261
Opinion (Division I)