North British & Mercantile Insurance Company v. Mercer, 211 Ga. 161, 84 S.E.2d 570 (Georgia Supreme Court 1954)

Bessie W. Mercer sued North British & Mercantile Insurance Company in the Municipal Court of Savannah for $179.50, damages to personal property, under the terms of a personal-property "floater" policy covering "all risks or loss of or damage to property" except "loss or damage caused by moth, vermin and inherent vice." It appeared that a squirrel had descended the chimney of the plaintiff's playhouse and wreaked destruction upon a maple table, chair, brass lamp, lampshades, and sofa cushions, and that the defendant declined to pay upon the ground that squirrels are vermin.

The jury returned a verdict for the plaintiff in the amount sued for, plus $50 attorney fees for bad faith under Code § 56-706. The defendant filed a motion for new trial on the general grounds, adding six special grounds by amendment, and the denial of this motion is assigned as error. 

COURT OF APPEALS OPINION:

The brief of counsel for the defendant in error (which, incidentally, includes an excellent recipe for squirrel stew) concludes with the following words, with which this court is inclined to agree: "'Vermin' is a mighty harsh word to hurl at our little friend the squirrel. He has long been well considered and much thought of as a pet and an attractive addition to the scenery of any city, garden, or country yard. He is praised in song and story as a shining example to mankind of industry and thrift. It is respectfully submitted that this court should not label the little fellow as nothing more that 'vermin'."

It is all the easier to agree with this encomium, as the question of whether squirrels are vermin was submitted to the jury, and the plaintiff offered without objection a wealth of technical and opinion evidence to the effect that they are not so classified (vermin being "any noxious, mischievous or disgusting animal"), whereas the defendant failed to place our furry friend within the limitations of this category. He certainly does not belong there as a matter of law, and as a matter of fact we are well content to leave the verdict undisturbed, there being no evidence to the contrary.

The plaintiff proved her loss and its value, thus making out a prima facie case. The defendant failed to offer any evidence showing that the loss was within the exclusion clause of the policy, and the evidence of the plaintiff could not be relied upon by the defendant to perform this function for it. A verdict was therefore demanded for the plaintiff in the amount of the damages done to the property. The amount fixed by the jury is not under attack.

SUPREME COURT OPINION

An insurance contract should, if its terms will permit, be construed to effectuate the intention of the parties. Code § 56-815. But since the insurer chooses the verbiage of the contract, all provisions therein that are susceptible of more than one meaning must be construed most favorably to the insured.

This case arises solely over the meaning of the exclusion clause of the insurance contract, and specifically the meaning of a single word therein, to wit: "vermin." This clause provides that the insurer shall not be liable for damages to the insured's property caused by "vermin." The undisputed evidence shows that the injury to property for which claim was made was done by a squirrel. Consequently a decision in the case calls for a construction of the exclusion clause to determine if it includes squirrels. 

The smaller dictionaries define vermin to mean "noxious, mischievous or mean animals or insects." The larger New International Webster's Dictionary (2d ed.), after giving in substance the above meaning, proceeds to specify or particularize by naming the class of animals and insects to which it refers "as flies, lice, bedbugs, fleas, etc., various mammals, as rats, mice, weasels, etc." Therefore, guided by the foregoing rules of construction, we construe the word "vermin" as here used to refer to "rats, mice, etc." and hence squirrels are not included therein. 

We are not in the slightest persuaded against the above construction by further dictionary definitions such as (1) a rodent is one of the rodentia, and (2) both squirrels and rats are members of this order of mammals. Despite the fact that vermin means noxious, mischievous, etc., mammals such as rates, mice, etc., it does not follow therefrom that other animals that are admittedly not "rats, mice, etc.," but are squirrels, must be vermin because a squirrel belongs to the order of rodentia and rats also belong to that same order of mammals. 

Therefore, without considering any of the evidence introduced to prove that a squirrel is not considered vermin, we construe the contract and hold that the word "vermin" as therein used does not mean a squirrel. Hence the injury to the insured property is covered by the policy, although it was caused by a squirrel. From what has been ruled above, it follows that the judgment of the Court of Appeals must be affirmed.