#### MRS. M. W. GANT v. THE PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY OF CHATTANOOGA, TENNESSEE.

(Filed 24 April, 1929.)

1. Insurance E b — Construction of insurance contract in general.

Tbe rule that a liberal construction of ambiguous language will be ' given in favor of the insured has no application when the words employed clearly express the terms upon which the policy has been issued.

2. Insurance It a — Construction of policy of accident insurance as to the risks covered.

When a policy of accident insurance limits the liability of the company to injuries caused the insured by being struck by a moving automobile, its plain and unambiguous meaning will not be extended in favor of the insured to cover an injury caused by being struck with a plank hurled against her by a. revolving wheel of an automobile.

3. Trial D c — Nonsuit properly granted when evidence does not establish liability of defendant.

Where the only evidence in an action upon an accident insurance policy tends to show that the defendant was not responsible under the terms of the piolicy, the defendant’s motion as of nonsuit is properly granted.

Appeal by defendant from *Shaiv, J.,*at August Term, 1928, of Gutleokd.

Reversed.

*123Tbis is an action to recover on an automobile accident policy of insurance issued by defendant to plaintiff on 6 February, 1923, and in force on 10 January, 1927. Tbe policy provides for tbe payment by defendant to plaintiff of a stipulated sum of money, as indemnity, for tbe loss of life or limb, of sight or time, by accidental means; tbe liability of defendant, however, is expressly limited by tbe language of tbe insuring clause in said policy.

By said policy defendant insured plaintiff “against tbe effects resulting exclusively of all other causes from bodily injury sustained by tbe insured during tbe life of tbis policy solely through external, violent and accidental means (excluding suicide while sane or insane, or any attempt thereat while sane or insane) and which bodily injury is sustained by tbe insured as tbe result of operating, driving, riding in or on, adjusting or cranking an automobile, or of being struck, run down or run over by a moving automobile, or caused by tbe burning or explosion of an automobile.”

Tbe evidence at tbe trial tended to show that on 10 January, 1927, plaintiff was struck by a plank which was thrown against her by tbe revolving wheel of an automobile; the plank struck tbe plaintiff on her leg, thereby causing her a serious bodily injury. At tbe time she was struck by tbe plank plaintiff was standing in tbe yard of her home in Greensboro,-N.'C., at a distance of 12 or 15 feet in tbe rear of tbe automobile. No part of tbe automobile struck, or came in contact with tbe person of plaintiff.

Plaintiff’s husband bad undertaken to drive tbe automobile from bis garage to tbe street, in front of bis home; tbe driveway, running from tbe garage to tbe street, was covered with snow, 15 to 17 inches deep. After tbe automobile bad been driven from tbe garage, and while it was on tbe driveway, tbe rear wheels began to spin, because of tbe snow on tbe driveway. Tbis caused tbe automobile to skid. To prevent tbe wheels fro.m spinning and tbe automobile from skidding, plaintiff’s bus-band directed a servant to place a plank under each of tbe rear wheels. When tbis bad been done, tbe wheels passed over tbe planks underneath them. As tbe left rear wheel passed over tbe plank, which bad been placed under it, tbe plank was burled by tbe revolving wheel, with great force, toward tbe plaintiff, who at tbe time was standing in tbe 'rear of tbe automobile. Tbis plank struck tbe plaintiff and caused tbe injury to her leg. Because of tbe injury, plaintiff was taken at once to a hospital, where she remained for thirty-five days, under tbe care of physicians and surgeons. Since her return to her home from tbe hospital plaintiff has been unable, because of her injury, to resume the performance of her household duties.

*124Issues were submitted to the jury, and answered as' follows:

“1. Was the plaintiff struck by a moving automobile, within the terms of the policy of insurance, as alleged in the complaint? Answer: Yes.

2. Did the plaintiff on said occasion expose herself to unnecessary danger? Answer: No.

3. What amount, if any, is plaintiff entitled to recover of defendant? Answer: $635, with interest from 15 July, 1927.”

From judgment on the verdict defendant appealed to the Supreme Court.

*Shwping & Hampton for plaintiff.*

*Broolcs, Parlcer, Smith & Wharton for defendant.*

Connoe, J.

Only one question is presented for decision by defendant’s several assignments of error on this appeal: Was the bodily injury, which all the evidence shows was sustained by her on 10 January, 1927, the result of plaintiff “being struck ... by a moving automobile” ? Unless this question can be answered in the affirmative, it must be conceded that plaintiff cannot recover in this action. Defendant is liable to plaintiff only under the terms of the policy; if the injury which she sustained is not included within the terms of the policy, plaintiff cannot recover.

There was no evidence at the trial tending to show that plaintiff in fact was struck by a moving automobile, and thereby injured; all the evidence tended to show that she was struck by a plank. Can the language of the policy be so construed by the court that it may be held, upon all the evidence, as a matter of law, that plaintiff was struck by a moving automobile, because the evidence shows that she was struck by a plank which was thrown against her by the revolving wheel of an automobile ?

If the language of the policy is uncertain or ambiguous, and is susceptible to more than one construction, the court will adopt .and apply that construction which is most favorable to the insured. If, however, there is no uncertainty or ambiguity in the language of the policy, there is no occasion for judicial construction; the rights and liabilities of the parties must be determined in accordance with the plain, ordinary, and popular sense of the language which they have used in their contract. *Penn v. Insurance Co.,*158 N. C., 29, 73 S. E., 99.

In the instant case the liability of the defendant under the policy which plaintiff accepted, is expressly limited by language which is free from uncertainty or ambiguity. This language, therefore, cannot be so construed as to enlarge defendant’s liability, in order that plaintiff may recover upon the facts shown by the evidence. As there 'was no evidence *125from which the jury could find that plaintiff was injured by “being struck by a moving automobile,” we must hold that there was error in the refusal of the court to allow defendant’s motion, at the close of the evidence, that the action be dismissed as upon nonsuit. To the end that the action may be dismissed, in accordance with this opinion, the judgment is

Reversed.