Fidelity & Casualty Co. of New York v. Martin

• Decision Date: 27 July 1933
• Docket Number: No. 6930.,6930.
• Citation: 66 F.2d 438
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. MARTIN v. MARTIN.
• Court: U.S. Court of Appeals — Ninth Circuit

66 F.2d 438 (1933)

FIDELITY & CASUALTY CO. OF NEW YORK v. MARTIN v. MARTIN.

No. 6930.

Circuit Court of Appeals, Ninth Circuit.

July 27, 1933.

Howard Toole and Brice Toole, both of Missoula, Mont., for appellant.

John E. Patterson and Edward C. Mulroney, both of Missoula, Mont., for appellee.

Before WILBUR and SAWTELLE, Circuit Judges, and NORCROSS, District Judge.

WILBUR, Circuit Judge.

This action was brought by Ines Martin against the Fidelity & Casualty Company of New York to recover $5,000 under an accident insurance policy called a "personal automobile accident policy," issued to her husband, Teddy Martin, by that company, in which she was named as beneficiary in case of the death of the insured.

The insurance contract in question contained the following provisions:

"The Fidelity and Casualty Company of New York does hereby insure the persons named in Statement A of the copy of the application in the principal sum and weekly indemnity hereinafter specified, against — "Bodily injury sustained during the term of one year from noon, standard time, of the day this policy is dated, through accidental means —

"(1) While riding in or on, driving, operating, demonstrating, or while cranking, adjusting, repairing, a private passenger automobile."

Also, there are "Additional Provisions" as follows:

"A. This insurance shall not cover * * * injuries fatal or otherwise sustained by the insured: * * *

"3. While riding or driving in or on any motorcycle, automobile truck. * * *"

In case of death resulting from such bodily injuries within ninety days thereafter, the insurance company agreed to pay the beneficiary $5,000. While the policy was in effect on July 24, 1931, the insured, while driving alone in an automobile called a "Ford Roadster Pick-up," was struck by a passenger train of the Chicago, Milwaukee, St. Paul & Pacific Railway Company at a grade crossing in Mineral county, Mont., and instantly killed. He had left his place of business about noon, after having had lunch at his home, and had started in said automobile on a fishing trip for the remainder of the day.

The insured was a merchant operating a general store in Alberton, Mont. He purchased an automobile called a "Ford Roadster Pick-up closed cab" in 1929, and on June 24, 1931, obtained the policy in question.

Roy Anderson, a Ford salesman, testified that the car purchased by Mr. Martin was a Ford roadster, pick-up body, and not a truck; that "it is classified as a commercial car, and under the commercial cars as a roadster, pickup body"; that "a roadster, pick-up body, has the same chassis that a coupe or a sedan has, and the motor, wheels, everything, is the same; it is the same in every particular, except the back end, and it has the same seating capacity as the coupe. We also handle Ford trucks. The trucks are distinguished from the pick-ups by having longer wheel base, the wheel base is longer, and they are built heavier. The chassis of the truck is not the same as that of the pick-up. They are two different chassis. They are not the same. The motors are the same in both cars, or were at that time."

He testified that the removable box at the back end of the pick-up car was 54 inches long, 43 inches wide, and 13 inches deep, and stated that the "primary object of putting it on was to carry loads." When asked if practically every one of such cars sold by their agency was used commercially in stores and for delivery, answered: "Not all of them, but 9 out of 10 of them carry burdens and not persons, and property and not people."

H. O. Bell, the Ford dealer, was called by the defendant. He testified that the body on the car in question was called a roadster pickup.

"It has a removable box in the back end and a passenger seat in front. It is a closed cab. As to that cab not being like the passenger seat, however, that is, that the cab goes on the roadster pick-up and on no other, I will answer no. * * * It has a Model A chassis. * * * In our territory we sell most of them to stores for delivery and things like that. * * * As vehicles the roadster pick-up and the five-passenger sedan serve different purposes, one has a more general use that it can be put to than the other. I should say that the so-called five-passenger sedan is strictly for passenger purposes and the pick-up is more for commercial purposes."

The car was used by the insured both for pleasure and business purposes. His son, who worked in the store with his father, testified:

"That car was also used by others and by myself. I made small deliveries with it for the store; my father, however, did not do so, he never delivered anything in it to my knowledge, that is, from the store; I was right in the store. I also used the car for pleasure purposes. * * * It was used by my father for pleasure purposes only. * * *

"My father operated a general store at Alberton. In addition to the use which was made of the car by my father that car was used in and around the town of Alberton for small deliveries from the store. I did, myself, drive the car and deliver articles from the store to patrons of the store; that, however, was not necessarily the purpose for which the car was bought. At that time my father had a large car, a passenger car, but he didn't like to drive it. It was a Cadillac. * * * That car was sometimes used by us as a pleasure car. * * *" The car in question "was purchased early in 1929. During that period from the time it was purchased until the time it was destroyed by the train it was used by the store practically continuously during the day time...