Perry v. N. Am. Acc. Ins. Co.

• Citation: 138 A. 894
• Decision Date: 17 October 1927
• Docket Number: No. 106.,106.
• Parties: PERRY v. NORTH AMERICAN ACC. INS. CO.
• Court: United States State Supreme Court (New Jersey)

138 A. 894

PERRY

v. NORTH AMERICAN ACC. INS. CO.

No. 106.

Court of Errors and Appeals of New Jersey.

Oct. 17, 1927.

(Syllabus by the Court.)

Kays, Hetfield, and Dear, JJ., dissenting.

Appeal from Supreme Court.

Action by Beulab E. Terry, administratrix of the estate of Mortimer L. Perry, deceased, against the North American Accident Insurance Company on an insurance policy. From a judgment for defendant, plaintiff appeals. Affirmed.

Hobart & Minard, of Newark, for appellant.

Philip J. Schotland, of Newark, for respondent.

KATZENBACH, J. On November 6, 1925, Mortimer L. Perry was killed by being thrown from a motorcycle on which he was riding when the motorcycle collided with a motor truck. At the time of his death Perry was insured under an accident policy issued on January 20, 1925, by the North American Accident Insurance Company, the respondent (the defendant below). The policy was for the term of one year. The premium paid by Perry for the term of the policy was 50 cents. The policy insured Perry against—

"Death or disability resulting directly and independently of all other causes from bodily injury sustained through external, violent, and accidental means, subject to the limitations and conditions herein contained, as follows:

"Part I.

"If the insured shall, by the wrecking or disablement of any railroad passenger car or passenger steamship or steamboat, in or on which such 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 such insured is traveling as a fare-paying passenger; or, 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, suffer any of the specific losses set forth below in this part I, the company will pay the sum set opposite such loss."

Beulah E. Perry, as administratrix of the estate of Mortimer L. Perry, instituted in the Supreme Court an action against the insurance company to recover under the terms of the policy the sunt of $1,000. The case was tried at the Essex circuit before the Honorable William A. Smith, circuit court judge, without a jury, on stipulated facts and testimony. A judgment was rendered in favor of the respondent (hereinafter called the defendant). From this judgment the plaintiff below (hereinafter called the plaintiff) has appealed.

The question presented is whether the construction given to the contract by the circuit judge was correct. The question presented is a narrow one and is confined to the determination whether a motorcycle is a "car" within the meaning of the provisions of the policy above recited. Counsel for the plaintiff have presented to us a brief, 97 pages in length, presenting with great care the plaintiff's contentions for the reversal of the judgment. It will be impossible to consider, except in a general way, many of the definitions, statutes, and decisions to which counsel direct our attention in their effort to reverse the judgment below. The decisions to which our attention is directed holding that a motorcycle is a motor-driven car rest upon the construction of special statutes which are broad enough in their language to include motorcycles under the term of "motor-driven vehicles," or some other similar term. No case is cited which holds under the provisions of the policy sued on that a motorcycle is a motor-driven car. The respondent cites two cases instituted against it, decided in other jurisdictions, which construe the terms of the policy sued on in the present case as not to include a motorcycle as a motor-driven car. These cases are Salo v. North American Accident Insurance Company, 153 N. E. 557, decided by the Supreme Court of Massachusetts, and Laporte v. North American Accident Insurance Company, 161 La. 933, 109 So. 767, 48 A. L. R. 1086, decided by the Supreme Court of Louisiana.

Our examination of the provision of the policy sued on bearing on the present controversy has led us to the conclusion that the correct interpretation of the terms of the policy excludes a motorcycle from the class of a motor-driven car. There is no ambiguity in the language of the policy. The principle of law that when an ambiguity exists the policy should be liberally construed against the company and in favor of the insured has no application. The ordinary and usual meaning of the words must be sought and given to them. Where the words are used to express the meaning of the party using them, the court will not adopt a strained and improbable construction. Bew v. Traveler's Insurance Co., 95 N. J. Law, 533, 112 A. 859, 14 A. L. R. 983. The policy uses the phrases ...