Burrus v. Continental Life Ins. Co.

• Decision Date: 27 January 1930
• Citation: 40 S.W.2d 493,225 Mo.App. 1129
• Parties: HARVEY BURRUS, ADMR., APPELLANT, v. CONTINENTAL LIFE INSURANCE CO., RESPONDENT
• Court: Kansas Court of Appeals

40 S.W.2d 493

225 Mo.App. 1129

HARVEY BURRUS, ADMR., APPELLANT, v. CONTINENTAL LIFE INSURANCE CO., RESPONDENT

Court of Appeals of Missouri, Kansas City

January 27, 1930

Appeal from the Circuit Court of Jackson County.--Hon. Willard P Hall, Judge.

Judgment reversed and remanded.

Burrurs & Burrus and Mosman, Rogers & Buzard for appellants.

Fred A Boxley for respondent.

BARNETT C. Boyer, C., concurs. Arnold and Bland., JJ., concur. Trimble, P. J., absent.

OPINION

BARNETT, C.

This is a suit on an insurance policy, whereby John B. Lobb was insured against death or disability resulting directly, independently, and exclusive of all other causes from bodily injury effected solely through external, violent, and accidental means and sustained by the insured in the manner following:

"Part One.

"(a) By the wrecking or disablement of any railroad passenger car or passenger steamship or steamboat, in or on which the Insured is traveling as a fare-paying passenger; or, by the wrecking or disablement of any public omnibus, street railway car, taxicab, or automobile stage, which is being driven or operated, at the time of such wrecking or disablement by a licensed driver plying for public hire, and in which the Insured is traveling as a fare-paying passenger and such injuries so sustained shall result in any of the specific losses set forth in this Part 1.

"(b) By the wrecking or disablement of any private automobile, motor driven car or horse drawn vehicle in which the Insured is riding or drawn, or being accidentally thrown from such automobile, car or vehicle."

While this policy was in effect the assured was riding on a motorcycle to the side of which there was attached a body designed for the carriage of a passenger and supported by a third wheel. The evidence indicated that the particular motorcycle was not constructed exactly the same as an ordinary motorcycle. It was so designed that it could not be operated at as high a rate of speed as the ordinary motorcycle and also was designed so that the body could be attached thereto. A witness who was in the motorcycle business testified that the whole machine was usually designated as a "side car outfit." The assured was upon the saddle of the motorcycle proper, and was operating the same when he received injuries which caused his death. The trial court sustained a demurrer to the evidence. The only question presented below was whether or not the assured came to his death from bodily injuries sustained by the wrecking of a "motor driven car" in which he was riding or drawn.

Plaintiff has appealed.

OPINION.

Respondent has cited cases wherein it is held that a motorcycle is not a "motor driven car." [Salo v. North American Acc. Ins. Co. (Mass.), 153 N.E. 557; Anderson v. Life & Casualty Ins. Co., 197 N.C. 72; 147 S.E. 693; Laporte v. North American Acc. Ins. Co., 161 La. 933; Perry v. North American Acc. Ins. Co. (N.J.), 138 Ala. 894.]

In each of these cases the policy insured against injury or death caused "by the wrecking or disablement of any private horse drawn vehicle or motor driven car in which insured is riding or driving." In each instance the motorcycle was a machine running on two wheels without side car attachment. The Massachusetts and Louisana cases were decided in 1926, the New Jersey case in 1927 and the North Carolina cases in 1929. The New Jersey and North Carolina cases approved what was said in the Massachusetts case almost in toto. All of the cases point out that the word "car" is ordinarily used in speaking of an automobile, and that in ordinary parlance a motorcycle is not referred to as a car, but is spoken of as a motorcycle; that a motorcycle, having two wheels, is a machine more in the nature of a bicycle equipped with motor power. It is also pointed out that the policy provided for protection if the assured rode in or on a railroad car or steamboat, but only for protection if the assured rode in a horse drawn vehicle or a motor driven car. In some of these cases it is stated that the motorcycle being supported by only two wheels, does not have the equilibrium of an automobile; that it is not supplied with bumpers or by a body in which the motorcyclist may drive or ride and for these reasons the use of the motorcycle is much more hazardous than the use of an automobile.

We depart for the present from further consideration of these cases to determine whether or not the conveyance which was used in this case should be held, as a matter of first impression, to come within the provisions of this policy. In this case the conveyances mentioned in the policy are automobiles, motor driven cars, and horse drawn vehicles. It is certain that the conveyance is motor driven. If it is a car it is one of the conveyances mentioned in the policy. We cannot infer that the term "motor driven car" was merely used to designate automobiles. Automobiles had already been specifically mentioned, and to hold that the term "motor driven car" was not intended to cover other forms of conveyances propelled by motor power would be to strike it from the policy. We cannot hold that "motor driven car" is a term which, in common parlance, refers to any specific kind of conveyance propelled by motor power. It might be contended that the term "motor car" is ordinarily used as another name for automobile. With some plausibility it might be contended that the word "car" is another name commonly used to designate the same kind of conveyance. But this policy specifically designates automobiles, using the term by which they are usually known. This is followed by a term which is not commonly used to refer to any particular form of conveyance but which has been framed for the purpose of designating all forms of conveyances which may properly be called "cars" and which are driven by motor. In Webster's International Dictionary the word "car" is defined thus: "A vehicle moved on wheels. (a) In general, a carriage, cart, wagon, truck, etc. Rare in this use. (b) A chariot of war or of triumph; a vehicle of splendor, dignity or solemnity. Poetic. (c) Specif., some particular vehicle so called, as an automobile, or locally in England, a four-wheeled hackney carriage. (d) A vehicle adapted to the rails of a...