(dissenting).
I respectfully dissent.
This is an action to recover benefits under a policy of insurance issued by the appellant to respondent, which provides for the payment of medical expenses for injury resulting from being struck by an automobile. The complaint alleges that on April 18, 1959 the respondent stopped along the highway to watch an automobile wrecker get out of a gully near the road, and while so doing the rear wheels of the wrecker spun a piece of timber which had been placed under the wheels for traction, against the respondent’s leg and broke it, resulting in medical expenses in the amount of $750.00, for which amount judgment is sought. It is also alleged that the proximate cause of the injury was the automobile wrecker.
The defendant interposed a demurrer to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action in that the allegations of the complaint affirmatively show that the injuries received by the respondent were due to his being struck by a piece of timber, and not by an automobile. This appeal is from an order overruling the demurrer and presents only one question for decision: *309Was the injury received by respondent from the piece of timber thrown against his leg by the spinning wheels of the wrecker the result of his being struck by an automobile?
The policy of insurance is not before us but the pleadings show that it contains a limitation of coverage to injuries received when struck by an automobile. While similar provisions of insurance policies have been passed upon in other jurisdictions, we have found no case in point in this State. A discussion and analysis of the decisions from other jurisdictions may be found in the following citations: 29A Am. Jur. Section 1242, page 382; Annos: 138 A. L. R. 411 and 12 A. L. R. (2d) 598. A review of the decisions of the courts which have passed upon similar policy provisions under identical or comparable facts reveals a difference of opinion as to the proper meaning and coverage of the contracts. No attempt will be made here to review all of the decisions, but the following represent the views generally taken by the courts which have passed upon the question.
The State of North Carolina has under identical facts as here denied coverage under a policy providing for indemnity for injuries sustained when struck by a moving vehicle. Gant v. Provident Life and Accident Insurance Co., 197 N. C. 122, 147 S. E. 740. The same result was reached by the Georgia Court in Harley v. Casualty Insurance Company of Tennessee, 40 Ga. App. 171, 149 S. E. 76, in denying liability for injuries sustained when a nut on a wheel of an automobile became detached and struck the insured, under a policy protecting him if struck, knocked down or run over by an automobile. Recovery was denied in both cases apparently upon the ground that there was no physical contact with the vehicle, and the policies were interpreted to so require under their plain and unambiguous terms.
On the other hand, the Tennessee Court allowed recovery for injury to the insured when struck by a rock or some other hard substance thrown by the wheels of a passing automobile, under a policy provision indemnifying if the in*310sured shall be struck by a vehicle which is being propelled by gasoline, etc. Maness v. Life and Casualty Insurance Company of Tennessee, 161 Tenn. 41, 28 S. W. (2d) 339. The Arkansas Court reached a like conclusion in Gilbert v. Life and Casualty Co. of Tenn., 185 Ark. 256, 46 S. W. (2d) 807. There the policy insured against accident resulting from being struck by a vehicle propelled by gasoline. The insured was helping pull stumps and was killed from the lash of a cable attached to a tractor when the cable slipped from a stump. Recovery was allowed in the last mentioned cases apparently on the ground that the policy provisions were ambiguous and under a liberal construction were broad enough to cover injuries sustained when struck through the means or instrumentality of an automobile.
The appellant contends that the phrase “struck by an automobile” in the present policy is clear and unambiguous and means to come in physical contact with the vehicle. While the respondent, whose position was sustained in the lower Court, interprets it to mean an injury of which the operation of the automobile is the efficient and proximate cause.
In construing the meaning of the policy provision in question, certain well settled principles of law relative to construction of insurance contracts must be kept in mind. These are clearly set forth in the case of Walker v. Commercial Casualty Ins. Co., 191 S. C. 187, 4 S. E. (2d) 248, 249, as follows:
“The parties have the right to make their own contracts and when such contracts are capable of clear interpretation the court’s duty is confined to the enforcement thereof; it cannot exercise its discretion as to the wisdom of such contact or substitute its own for that which was agreed upon. Brown v. Mutual Life Insurance Co. of New York, 186 S. C. 245, 195 S. E. 552, 555.
“Where the language of such a contract may be understood in more senses than one, or where it is doubtful whether given words were used in an enlarged or a re*311stricted sense, other things being equal, that construction should be adopted which is most beneficial to the insured. Prosser v. Carolina Mutual Benefit Corp., 179 S. C. 138, 183 S. E. 710, 712.
“Printed insurance contracts prepared by experts in any respect ambiguous or capable of two meanings must be construed in favor of the assured. Jennings v. Clover Leaf Life & Casualty Co., 146 S. C. 41, 143 S. E. 668, 670.
“In the construction of insurance contracts, * * * in cases of doubt, uncertainty, manifest ambiguity, or susceptibility of two equally reasonable interpretations, since the language used is the selection and arrangement of the insurer, such contracts must be liberally construed in favor of the insured. Parker v. Jefferson Standard Life Ins. Co., 158 S. C. 394, 155 S. E. 617, 618.”
The provision under discussion is not so unambiguous and unequivocal as to justify the strict construction sought to be placed upon it by the appellant. It is without qualification as to the manner, method or means of being struck by an automobile. We are not only construing the meaning of the word “automobile”, but a phrase of the policy of which it is a part. One of the key words in ascertaining the meaning of the phrase is the word “by”, for coverage is afforded for injuries resulting from being struck by an automobile. While the word “by” has various meanings depending upon thé intention and purpose of its use, “the word is commonly used as indicating or having reference to agency or instrumentality, authority or cause”, and may mean “through the means, act, or instrumentality of.” 12 C. J. S. By, pp. 865, 866 and 867; Black’s Law Dictionary, page 262. Mr. Webster, among other definitions, gives the meaning as: “through”, “through the medium of”, “through the means of”, “in consequence of”.
The foregoing are common meanings of the word “by” as used in the ordinary affairs of life. When it is given the foregoing meaning, the policy provision would cover in*312juries resulting from being struck “through the means, act or instrumentality of” an automobile. The provision of the policy in question is therefore reasonably susceptible of other meanings than the strict interpretation sought by appellant, and may be reasonably interpreted to include coverage for the injuries sustained by the respondent.
Illustrative of the application of the rule of liberal construction by this Court in the interpretation of insurance contracts is the case of Reynolds v. Life and Casualty Ins. Co., 166 S. C. 214, 164 S. E. 602, where a policy provision covering loss while riding in an automobile was construed to include riding on the running board of the vehicle.
To restrict the coverage of the policy to only those injuries sustained when the insured came in physical contact with the automobile would limit its provisions beyond that required by the language used. The fact that the automobile struck him with a piece of timber instead of with some part of the automobile is immaterial. He was none the less struck, and the agency by which he was struck was an automobile, against blows from which his policy provided indemnity. Maness v. Life and Casualty Insurance Co., supra; Gilbert v. Life and Casualty Co. of Tenn., supra. If the appellant had desired to restrict coverage to only those injuries sustained from physical contact with the automobile itself, it could have very easily done so, as was the case in Brown v. Life and Casualty Ins. Co. of Tenn., 1933 La. App., 146 So. 332.
The lower Court properly overruled the demurrer interposed by appellant. I would affirm the judgment appealed from.