Ferguson v. Provident Life & Accident Ins. Co

• Decision Date: 28 May 1934
• Docket Number: 31274
• Citation: 170 Miss. 504,155 So. 168
• Parties: FERGUSON v. PROVIDENT LIFE & ACCIDENT INS. CO
• Court: Mississippi Supreme Court

155 So. 168

170 Miss. 504

FERGUSON v. PROVIDENT LIFE & ACCIDENT INS. CO

No. 31274

Supreme Court of Mississippi

May 28, 1934

Division B

1 INSURANCE.

Terms of accident policy should be understood in plain, ordinary and popular sense.

2 INSURANCE. Trailer used in moving house along highway and drawn by two tractors held not "automobile" within accident policy insuring against injury resulting from being struck by automobile.

Such trailer could not be considered as "automobile" within terms of policy, it appearing that the trailer consisted of six strong wheels operating on large axles and so built that small house could be loaded thereon, and that house could be moved along the public highway by attaching two tractors as motive power.

HON. W. J. PACK, Judge.

APPEAL from circuit court of Forrest county HON. W. J. PACK, Judge.

Action by H. I. Ferguson against the Provident Life & Accident Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Affirmed.

Paul B. Johnson, of Hattiesburg, for appellant.

Mississippi Code 1930, Annotated, section 5565, defines "motor vehicle" as follows: "The term 'motor vehicle' shall include all vehicles propelled by any power other than muscular, whether the same be used for pleasure or business or commercial purposes, except road rollers, street sprinklers, fire engines and fire department apparatus, police patrol wagons, and such vehicles as run only on rails or tracks.

Sections 5566 and 5568, Code of 1930; Webster's New International Dictionary; Words & Phrases (1st series), page 650.

A statute requiring the licensing of operators of "automobiles" includes a road locomotive or traction engine used to draw cars.

Emerson Troy Granite Co. v. Pearson, 74 N.H. 22, 64 A. 582; Carter v. State, 12 Ga.App. 430, 78 S.E. 205; Baker v. Fall River, 178 Mass. 53, 72 N.E. 336; Cunningham v. Castle, 127 A.D. 580, 111 N.Y.S. 1057; Bouvier's Law Dictionary; Babbitt's Law Applied to Motor Vehicles; The New International Encyclopedia; Cook v. Modern Brotherhood of America, 131 N.W. 334.

The courts hold that where there is any fair doubt as to the meaning of terms used in such contracts, they must be construed most strongly against the party selecting the language.

14 R. C. L. 926; United States Mutual Acc. Asso. v. Barry, 131 U.S. 100, 9 S.Ct. 755; Dozier v. Fidelity & Casualty Co., 13 L. R. A. 166, 46 F. 448; National Masonic Accident Asso. v. Shryock, 20 Circuit Court of Appeals, 5, 36 U. S. App. 658; Travelers' Ins. Co. v. Selden, 24 Circuit Court of Appeals, 96, 42 U. S. App. 253, 78 F. 289; Kascoutas et al. v. Federal Life Ins. Co., 22 A. L. R. 294; Breen v. Great Western Accident Ins. Co., 190 Iowa 1172, 179 N.W. 931; Herrick v. Arborio, 258 N.Y.S. 5.

Deavours & Hilbun, of Laurel, for appellee.

The policy sued on is an accident insurance policy. In construing the word "automobile" used in this policy, it should be understood in its plain, ordinary and popular sense.

1 Couch's Cyclopedia of Insurance Law, sec. 178, page 363; Hart v. North American Accident Ins. Co., 122 So. 471.

In those cases where private contracts are entered into it appears to be the uniform holding of the courts passing upon that subject that in a contract where the word "automobile" is used, it is to be taken in its ordinary and popular acceptation, which is a motor-driven vehicle having four wheels, a body, sides, and top, suitable and intended for the conveyance of persons, and does not include such a vehicle as a motorcycle. In the policy under consideration the liability is restricted to accidents to the insured while riding or driving in a private horse-driven vehicle or private motor-driven automobile.

Neighbors v. Life & Casualty Ins. Co. of Tennessee, 31 S.W.2d 418; Liberty Highway Co. v. Callahan, 157 N.E. 708; Bowers v. Continental Life Ins. Co., 5 P.2d 608.

Argued orally by Paul B. Johnson, for appellant, and by Henry Hilbun, for appellee.

OPINION

Griffith, J.

Appellant's decedent was engaged, at the time of his death, in the business of moving small houses, for which purpose he was using a vehicular contrivance which, for want of a better name, we may call a trailer. It consisted of six strong wheels operating upon large axles, and the device was of such character that a small house could be loaded upon it, and the house could be moved along the public highways by attaching two tractors as the motive power. While...