Hoover v. National Cas. Co.

• Decision Date: 04 May 1942
• Parties: SUEWANNEE HOOVER, RESPONDENT, v. NATIONAL CASUALTY COMPANY, A CORPORATION, APPELLANT
• Court: Kansas Court of Appeals

162 S.W.2d 363

236 Mo.App. 1093

SUEWANNEE HOOVER, RESPONDENT, v. NATIONAL CASUALTY COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, Kansas City

May 4, 1942

Appeal from the Circuit Court of Jackson County.--Hon. Marion D Waltner, Judge.

AFFIRMED.

Judgment affirmed.

Don E Black and Mossman, Rogers & Bell for appellant.

(1) The provision of the policy limiting liability to death caused "by the wrecking of any private pleasure type automobile" was one which the company had the lawful right to impose, if it did not violate the law or was not inconsistent with public policy. 32 C. J. 1091, sec. 175; 14 R. C. L. 929, sec. 103; Taylor v. Loyal Protective Ins Co., 194 S.W. 1055, 1057; Bradshaw v. American Benevolent Assn., 112 Mo.App. 435, 87 S.W. 46. (2) Where the terms of an insurance policy are not ambiguous they may not be changed by judicial construction. Penn. v. Travelers Insurance Co. (Mo. App.), 225 S.W. 1033; Parks v. Maryland Casualty Co., 230 Mo.App. 383, 91 S.W.2d 1186. (3) The term "private pleasure type automobile" is not ambiguous. Lloyd v. Columbia Mutual Life Ins. Co., 200 N.C. 752, 158 S.E. 386; Taft v. Maryland Casualty Co., 211 N.C. 507, 191 S.E. 10. (4) Under the Statutes of Missouri, 1939, Section 9367, a Greyhound bus is denominated and classified as a commercial type automobile. (5) The court erred in refusing to declare the law to be as requested in defendant's requests for finding of law 1 and 2 and erred in finding that the bus in which the plaintiff was riding was a "private pleasure type automobile."

Ben L. Clardy and David P. Dabbs for respondent.

(1) Defendant departed from the accepted and established definitions of the term "pleasure type automobile" when it undertook to formulate a definition for use in construing this contract. 13 C. J., pp. 532, 537; Life & Casualty Company v. Metcalf (Ky.), 42 S.W.2d 909; Donaldson v. Brewster (Wash.), 173 P. 1018; Williams v. Brotherhood of Locomotive Firemen, etc. (Tex.), 298 S.W. 533; Morrison v. Wilson, 30 Cal. 344; Standard Oil Company v. Powell Paving Co. (S. C.), 138 S.E. 184. (2) The use of the bus for pleasure is not to be excluded in interpreting the meaning of appellant's policy. Burrus v. Insurance Company, 40 S.W.2d 493; Conyard v. Life & Cas. Ins. Co. of Tennessee, 168 S.E. 835; Life & Cas. Ins. Co. v. Cantrell, 57 S.W.2d 792; Moore v. Life & Cas. Ins. Co., 40 S.W.2d 403; Life & Cas. Co. of Tennessee v. Metcalf, 42 S.W.2d 909. (3) The court did not err in refusing defendant's abstract declaration of law No. 1 that the bus in question was a "commercial automobile," without any reference to the policy in question. Defendant's policywriter did not refer to the licensing statutes but set up his own definition by which defendant is bound. Sec. 8367, R. S. Mo. 1939; State v. Freels, 190 S.W. 545. (4) The court did not err in refusing defendant's declaration of law No. 2. Sec. 8367, R. S. Mo. 1939.

SPERRY, C. Boyer, C., concurs.

OPINION

SPERRY, C.--

Suewannee Hoover, plaintiff, sued National Casualty Company, a corporation, on an insurance policy issued by defendant on the life of plaintiff's daughter, Elizabeth F. Hoover. Plaintiff was beneficiary under said policy and judgment was for her in the amount of $ 1235. Defendant appeals.

The cause was tried to the court without a jury. An agreed statement of facts was filed, said statement of facts being to the effect that: Insured was accidentally killed by the wrecking of an automobile while riding as a passenger therein, said automobile being then owned by a private company by which she was employed, and was used by said employer for the transportation of its employees from one location to another in the course of employment; that said automobile was, at the time, being driven by an agent of said employer and the automobile had formerly been used by the Greyhound Bus Lines in its business of transporting passengers for hire on the highways and was a bus with seats in it sufficient for the transportation of from twenty to twenty-four passengers and, at the time of the accident, contained twenty-two passengers in addition to the driver; and that, at the time of the accident, the policy sued on was in full force and effect.

Plaintiff introduced the policy, which contained the following insuring clauses:

"Part III, $ 2,000 if the death of the insured is caused: '(a) By the wrecking of a public omnibus, taxicab, jitney, or automobile stage, which is being driven or operated at the time of such wrecking by a licensed driver plying for public hire, and in which such insured is traveling on a fare-paying passenger; . . .'

"Part IV, $ 1,000 if the death of the insured is caused: '(a) By the wrecking of a private pleasure type automobile or horse-drawn vehicle within which the insured is driving or riding as a passenger (excluding motorcycle and farm machinery), or while so driving or riding by being accidently thrown from within such wrecked automobile or vehicle.

"Part IX, Any Other Unspecified Accident--Death Benefit Provision: 'If the insured shall during the term for which this policy is issued, or any renewal thereof, suffer loss of life which results within thirty days from the date of accident solely from such injuries caused by an accidental event in or out of business and which is not otherwise covered by this policy, and which shall have caused continuous total disability from date of accident to date of loss of life, the company will pay the sum of Fifty ($ 50.00) Dollars.'"

Plaintiff contends that she is entitled to recover under paragraph (a) of Part IV of the policy; and defendant contends that she can only recover $ 50 under Part IX of the policy, and has tendered said sum and paid it into court for benefit of plaintiff in accordance with its position herein.

Defendant introduced in evidence the original petition filed by plaintiff and later abandoned by her when she filed the amended petition upon which the case was tried, the proofs of death and other documents filed by plaintiff with defendant in attempting to establish her claim, and the testimony of witness Rippy, who qualified as an expert on types of motor vehicles and who testified that a motor vehicle of the Greyhound bus class is not a "pleasure type" automobile.

The court found the facts for plaintiff and rendered a general judgment in her favor in the sum of $ 1235. No complaint is made here as to the amount of the judgment, provided that plaintiff was entitled to recover under Part IV, paragraph (a) of the policy, above set out.

Plaintiff contends that the language of the policy contained in Part IV above, is ambiguous and calls for judicial construction; that when the language used in an insurance contract is ambiguous and susceptible of more than one construction the courts should construe it most favorably to the insured; and that, since defendant provided for indemnity against loss of life of insured while a passenger riding in a "pleasure type automobile," which said provision is ambiguous and required judicial construction for its clarification, and has itself recognized such fact and has attempted to construe it by the specific exclusion of certain named instrumentalities which it does not intend to include in the coverage, it is bound to have included all other automobiles not named in the exclusion clause. Defendant contends that the expression "pleasure type automobile" is not ambiguous and cannot be held to include a bus as is here involved and that its liability is limited under Part IX of the policy to the sum of $ 50, which amount it has paid into court. The case, therefore, turns on the construction we give Part IV, paragraph (a) of the policy.

The term "automobile" has been defined as follows "A vehicle for the carriage of passengers or freight propelled by its own motor." Bouvier's Law Dictionary, Vol. 1, page 294, Rawles Third Edition; "A wheeled vehicle propelled by steam, electricity, or gasoline, and used on highways and streets for the transportation of persons or merchandise." 5 Am. Jur., page 517: "A self propelled vehicle or carriage for the transportation of persons or property whose operation is not confined to a fixed track." [Life & Casualty Company of Tennessee v. Metcalf (Ky.), 42 S.W.2d 909, l. c. 911.] This court has held that a motorcycle with a side car attached is a "motor driven car" within the meaning of an insurance policy using such language, but it was indicated therein that the instrumentality might not be held to come under the designation of "automobile," (Burrus v. Continental Ins. Co., 40 S.W.2d 493, l. c. 494); and the general rule is that a motorcycle is not an automobile, pleasure type or other type. [Moore v. Life & Casualty Ins. Co. (Tenn.), 40 S.W.2d 403, l. c. 405.] Certainly farm tractors and other self propelled farm machinery would not ordinarily be considered as "pleasure type automobiles." We think, therefore, that if the term used in this policy was not considered by the writer of the policy to be ambiguous, it would not have specifically excluded motorcycles and farm machinery from its...