Golding-Keene Co. v. Fidelity-Phenix Fire Ins. Co.

• Decision Date: 06 December 1949
• Docket Number: GOLDING-KEENE,FIDELITY-PHENIX
• Citation: 69 A.2d 856,12 A.L.R.2d 591,96 N.H. 64
• Parties: , 12 A.L.R.2d 591 CO. v.FIRE INS. CO.
• Court: New Hampshire Supreme Court

Page 856

69 A.2d 856

96 N.H. 64, 12 A.L.R.2d 591

GOLDING-KEENE CO. v. FIDELITY-PHENIX FIRE INS. CO.

Supreme Court of New Hampshire.

Dec. 6, 1949.

Philip H. Faulkner and N. Michael Plaut, Keene, for plaintiff.

Frederick W. Branch, Manchester, for defendant.

KENISON, Justice.

The first question in this appeal, which counsel advises is one of first impression, is whether or not the bulldozer is a vehicle within the meaning of the policy. This question must be determined in the light of the well established rule in New Hampshire that '* * * in construing an insurance contract the test is not what the insurance company intended the words of the policy to mean but what a reasonable person in the position of the insured would have understood them to mean.' Hoyt v. Amer. Eagle Fire Insurance Co., 92 N.H. 242, 243, 29 A.2d 121, 123, 148 A.L.R. 484. The definition of a vehicle used in the policy is not a restricted one but defendant maintains that the definition would convey to the common mind, Watson v. Fireman's Insurance Co., 83 N.H. 200, 202, 140 A. 169, only mechanical contrivances whose primary function is the transportation of persons or property from place to place. The plaintiff relies on the early case of Emerson Troy Granite Co. v. Pearson, 74 N.H. 22, 64 A. 582, holding that a traction engine is a vehicle and the recent case of American Mut., etc., Ins. Co. v. Chaput, 95 N.H. 200, 60 A.2d 118, holding that a tractor with alterations permitting it to be used as a shoved or loader was an automobile. Since these two cases were construed in relation to statutes regulating the safety of highways, it is fairer to both insurer and insured that they should not be determinative of the present question.

The bulldozer, a self-propelled machine operating on caterpillar tracks, was usually transported by trailer from job to job but it was capable of being used and was in fact used 'on a dirt road.' While a motor vehicle in the popular sense means a vehicle suitable for use on a street or roadway, 1 Blashfield, Cyc. of Automobile Law and Practice, Perm. Ed., § 2, under the terms of the policy endorsement by definition it was only necessary that the bulldozer be a vehicle 'running on land or tracks.' In common parlance a vehicle is a broader term than motor vehicle or automobile. This is borne out by the history of the extended coverage endorsement which originated in the 1930's but came into general use only in the last decade. See Magee, Property Insurance (1941) 323. Formerly the coverage was restricted to damage caused by motor vehicles but the present endorsement is not so restricted. In view of the changes as well as the absence of qualifying limitations in the definition there is good reason to believe that none was intended and that it included bulldozers and tractors as well as motor vehicles. Cf. Koser v. American Casualty Co., 162 Pa.Super. 63, 56 A.2d 301; 1948 Annual Survey of American Law 631.

It is true that no case strictly in point has been called to our attention or discovered unless we take those cases which involve highway safety statutes such as Peterson v. King County, 199 Wash. 106, 90 P.2d 729, and the Chaput case, 95 N.H. 200, 60 A.2d 118, which are in support of plaintiff's case. But, as already noted, these relate to cases where there is a stated public-policy for the protection of the highway traveler and their use here would be unfair to the underwriter. That the construction placed on the extended coverage endorsement in this case was actually intended by the insurer, as well as stated, is evident from another portion of the endorsement itself. It specifically provides that the insurer shall not be liable 'for any loss or damage to vehicles, fences, driveways, sidewalks or lawns.' This provision indicates that exclusions desired are expressly stated. It is not to be assumed that the defendant would contend that the word 'vehicle' there used had a restricted meaning so that the policy covered damage to bulldozers and tractors.

The master found: 'The bulldozer was, in a broad sense, a means of conveyance and it ran on land. It is found to be a vehicle.' The defendant quotes from the Merriam-Webster International Dictionary the following definition of 'vehicle'; 'That in or on which a person or thing is or may be carried from one place to another * * *.' The bulldozer had the essential characteristics of a tractor, which were not changed by the addition of a blade on the front. A tractor is defined as 'an automotive vehicle used for drawing or hauling something.' Webster's New International Dictionary, 2d Ed., 1948. We cannot say as a matter of law that the bulldozer was not a vehicle within the meaning of the policies of insurance.

Since the endorsement excludes vehicle damage by the owner or a tenant and the agent of either it is urged that the damage in this case is not within the coverage thereof since it was not caused by a hostile vehicle. No such limitation is expressed in the words of the endorsement and to imply it would be unwarranted. By its terms the coverage included damage to certain designated buildings by vehicles and such coverage was not dependent on the fact that it was caused intentionally, negligently or non-negligently. Damage by vehicle to the building by the insured, a tenant or their agent was excluded; such damage by others was included and the manner in which it brought about was not qualified by the terms of the endorsement.

The use of an eleven ton bulldozer within the insured building is claimed to be such an increase of risk that the policy is rendered void and inoperative. R.L. c. 326, § 6 provides: 'Change or Breach. A change in the property insured or in its use or occupation, or a breach of any of the terms of the policy by the insured, shall not affect the policy, except while the change or breach continues.' This statute as construed permits many changes in the situation and circumstances affecting fire insurance risks. It is only those which result in a materially increased risk that make the policy inoperative, Janvrin v. Rockingham Farmers' Mut. Fire Insurance Co., 70 N.H. 35, 36, 46 A. 686. The change must be one that would '* * * materially and substantially enhance the hazard as viewed by a person...