Moffitt v. State Automobile Insurance Association

Decision Date21 November 1941
Docket Number30989
Citation300 N.W. 837,140 Neb. 578
PartiesORVILLE MOFFITT, APPELLANT, v. STATE AUTOMOBILE INSURANCE ASSOCIATION, APPELLEE
CourtNebraska Supreme Court

APPEAL from the district court for Saunders county: HARRY D. LANDIS JUDGE. Opinion on motion for rehearing of case reported in 139 Neb. 512. Former judgment of reversal vacated and judgment of district court affirmed.

AFFIRMED.

Syllabus by the Court.

A hay grinder mounted upon four wheels is, while being drawn by a truck upon a public highway, a trailer or vehicle within the meaning of a provision of an insurance contract excluding liability when such truck is being used for towing or propelling any trailer or vehicle.

Appeal from District Court, Saunders County; Landis, Judge.

Action by Orville Moffitt against the State Automobile Insurance Association to compel defendant to pay a judgment which plaintiff had obtained against Ralph Dean. From a judgment for defendant, plaintiff appeals. On reargument.

Affirmed.

Superseding opinion in 297 N.W. 918.

Horace V. Noland, Peterson & Devoe and C. E. Barney, for appellant.

Wear Boland & Nye, contra.

Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE, CARTER, MESSMORE and YEAGER, JJ.

OPINION

CARTER, J.

Plaintiff recovered a judgment against Ralph Dean for the negligence of the driver of Dean's truck while it was being operated on a public highway. At the time of the accident the truck was towing a hay grinder. Prior to the time of the accident, defendant had issued a policy of automobile insurance to Ralph Dean, insuring him against loss resulting from the negligent operation of the truck. This suit was brought to compel defendant to pay the judgment plaintiff had obtained against Dean.

Defendant contends that no liability exists under the contract of insurance because of the following exclusionary clause contained in the policy: "This contract does not cover losses resulting * * * while any automobile described herein is being used or maintained under any of the following conditions: * * * (d) Loss or damage while the automobile described is being used for towing or propelling any trailer or vehicle." The only question for determination is whether the hay grinder was a trailer or vehicle within the meaning of the exclusionary provision of the insurance policy.

The hay grinder is described in the stipulation of facts as having four wheels with rubber tires which were the same width as the inner wheels of the truck, they being standard truck width. The grinder weighed between one and one and one-half tons and was not equipped with any braking device. The hay grinder was about ten feet long and eight feet high and had both a front and rear axle with no independent motive power. The weight of the grinder was about equally distributed over the four wheels. The chassis was not constructed or designed to carry passengers, goods or merchandise, its function being limited to the conveyance and support of the hay grinder.

We think the hay grinder was a vehicle within the meaning of the insurance contract. In construing a contract of insurance the words used will be considered in their ordinary and popular sense. What, then, is the commonly accepted meaning of the word "vehicle?" We think the common meaning is: "That in or on which a person or thing is or may be carried from one place to another, esp. along the ground, also through the air; any moving support or container fitted or used for the conveyance of bulky objects; a means of conveyance." Webster's New International Dictionary. One of the definitions of the word "trailer" by the same authority is: "A nonautomotive highway vehicle designed to be hauled, as by a tractor, a motor truck, or a passenger automobile." Giving the words of the policy their ordinary and usual significance, it seems to us that the hay grinder and its four...

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