Laporte v. North American Acc. Ins. Co.

Citation109 So. 767,161 La. 933
Decision Date31 May 1926
Docket Number27501
CourtSupreme Court of Louisiana
PartiesLAPORTE v. NORTH AMERICAN ACC. INS. CO

Rehearing Denied October 5, 1926

Appeal from Civil District Court, Parish of Orleans; E. K. Skinner Judge.

Action by Mrs. Emily M. Laporte, widow of Albert Major, against the North American Accident Insurance Company. Judgment for defendant, and plaintiffs appeals.

Affirmed.

Titche Kiam & Titche, of New Orleans, for appellant.

Dart & Dart, Louis C. Guidry, and Robert Ewing, Jr., all of New Orleans, for appellee.

OPINION

LAND, J.

The widow of Albert Major, administering his estate in the capacity of natural tutrix of her minor children, has instituted this suit on an accident policy of insurance issued to decedent by the North American Accident Insurance Company.

While said policy was in force, the insured was thrown from a motorcycle, knocked down, and run over by a Ford automobile at the corner of Prytania and St. Andrew streets in the city of New Orleans, and died later at the Touro Infirmary in said city.

The sole defense urged by defendant company is that the accident was not covered by the policy, as a motorcycle is not such a motor-driven car as is covered by the policy issued herein.

Under part 1 of the policy, an indemnity of $ 1,000 is provided in case of loss of life. Plaintiff demands double that sum as a penalty for failure on the part of defendant company to make settlement within six months after proof of death, and, in the alternative, double the amount of insurance; i. e., the sum of $ 500, under part 2 of the policy, providing for loss of life "by being struck or knocked down or run over, while walking or standing on a public highway, by a vehicle propelled by steam, cable, electricity, naptha, gasoline, horse, compressed air, or liquid power."

From a judgment rejecting her demands, plaintiff has appealed.

1. It is admitted in the stipulation as to the facts "that at the time of the accident the said Albert Major was riding on what is known as a motorcycle, and he was by said Ford automobile thrown therefrom, knocked down, run over, and killed."

As the provisions of part 2 of the policy apply to loss of life occasioned only by accidents happening to the insured "while walking or standing on a public highway," it is clear that the dismissal of plaintiff's suit as to the alternative demand is correct.

While part 2 of the policy limits the right of the estate of the insured to recover for accidents to one who is "standing or walking on a public highway," there is little or no restriction as to the kind of vehicle by which the insured may be struck or knocked down or run over; it being immaterial whether he is killed "by a vehicle propelled by steam, cable, electricity, naptha, gasoline, horse, compressed air, or liquid power."

While it is manifest that the heirs of the insured, under part 2 of the policy, might recover for the loss of his life had he been killed while "standing or walking on a public highway" by being struck, knocked down, or run over by a motorcycle, yet recovery can be had, in this particular case, under part 1 of the policy, only "by the wrecking or disablement of any private horse-drawn vehicle, or motor-driven car, in which insured is riding or driving, or by being accidentally thrown from such vehicle or car."

It is admitted in the statement of facts that deceased was riding on a motorcycle at the time of the accident, and "that by motorcycle is meant a two-wheeled, motor-driven machine, substantially as shown by the cut marked Exhibit 1, except that the motorcycle ridden or driven by decedent, Albert Major, was equipped with a seat at the rear, upon which another person could ride, and Mrs. Emily Laporte Major, now widow, often rode upon it behind her husband." (Italics ours.)

We fail to see wherein the above admission is of any benefit to plaintiff in this case, as the insured must be killed by being accidentally thrown from "a private horse-drawn vehicle or motor-driven car," in which he is riding or driving, in order that recovery may be had. The word "motor-driven machine" is not used in the policy at all. It must be conceded that a motorcycle is not "a horse-drawn vehicle"; and while the word "vehicle" is broad enough when used in connection with the word "motor-driven," to include a motorcycle, yet in the policy sued on the word "vehicle" is qualified by and limited to "horse-drawn vehicles." The sole question, therefore, left for decision is whether a motorcycle is a "motor-driven car" in which the insured was riding or driving at the time of the accident.

The policy issued in this case is headed with the following statement in large type letters:

"This policy provides indemnity for loss of life, limb, sight or time by accidental means, as herein limited and provided." (Italics ours.)

In other words, it is made plain to the public that the policy in question is not one covering accidents generally, but that the liability of the insurance company issuing the same is a restricted one, to be incurred only under the particular circumstances and conditions stated in the policy.

In this case the policy covers an indemnity of $ 1,000 for loss of life, and is issued to the insured for the term of one year, upon the payment of the small premium of 50 cents. The reason for the limitations contained in the present policy is apparent. It is obvious that one riding on a motorcycle in a public street, which may be congested with automobiles and other vehicles, is wholly exposed to accidents from collisions of all kinds. In the first place, his machine is on a level with the traffic, is supported by only two wheels, and is without protection, either by front or rear bumpers, or by a body in which the motorcyclist may drive or ride.

Because of the unusual risk assumed by those riding upon motorcycles, it is plain that these machines were excluded intentionally from the policy, not in express terms, it is true, but by restricting recovery only to cases of accidents to the insured arising by being thrown from "any private horse-driven vehicle, or motor-driven car, in which such insured is riding or driving," thereby clearly indicating a motor-driven car with a body, and having more than two wheels as a support, and as a protection to the driver against accidents.

So there is every reason, from the standpoint of risk and liability, why defendant insurance company should exclude motorcycles from its policy, and none whatever to induce it to include such dangerous machines, upon the payment of the negligible sum of 50 cents per year for an indemnity risk of $ 1,000.

A motorcyclist may ride upon his machine, but he cannot ride in it.

A motorcycle is not known as a "motor-driven car," or as a motorcar," in the...

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