Salo v. North American Acc. Ins. Co.

• Decision Date: 19 October 1926
• Citation: 257 Mass. 303,153 N.E. 557
• Parties: SALO v. NORTH AMERICAN ACC. INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

257 Mass. 303

153 N.E. 557

SALO

v.NORTH AMERICAN ACC. INS. CO.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 19, 1926.

Exceptions from Superior Court, Worcester County; L. S. Cox, Judge.

Action of contract by John J. Salo, administrator of the estate of William Salo, deceased, against the North American Accident Insurance Company, to recover on an accident insurance policy. Finding for defendant, and plaintiff excepts. Exceptions overruled.M. M. Taylor, of Worcester, for plaintiff.

J. F. McGrath, of Fitchburg, and J. J. MacCarthy, of Worcester, for defendant.

CROSBY, J.

This action of contract is brought by the plaintiff as administrator of the estate of his son, William Salo, who died on May 29, 1924, as the result of injuries received by being thrown from his motorcycle on that day. The intestate at the time of his death was insured by an accident insurance policy issued to him by the defendant. The case was heard by a judge of the superior court without a jury upon an agreed statement of facts. The plaintiff seasonably requested the trial judge to make the following rulings:

‘(1) Upon the agreed statement of facts the plaintiff is entitled, as a matter of law, to a verdict for $1,000 and interest according to law.

‘(2) Upon the pleadings and the agreed statement of facts the plaintiff is entitled, as a matter of law, to a verdict for $1,000 and interest according to law.’

The judge refused to rule as requested and found for the defendant.

[2] The pertinent provisions of the policy are embodied in that portion entitled ‘Part I,’ which provides in substance that if the insured shall be killed the company will pay $1,000 if such death is caused ‘by the wrecking or disablement of any private horsedrawn vehicle, or private motor-driven car in which insured is riding or driving, or, by being accidentally thrown from such vehicle or car. * * *’ The sole question presented is whether a motorcycle is a ‘motor-driven car’ within the meaning of those words as used in the policy. The burden rested upon the plaintiff to prove the affirmative of that proposition to entitle him to recover. It is earnestly argued in his behalf that, as a motorcycle is driven by a motor, it is a motor vehicle; that the term ‘motor vehicle’ includes motorcycles and automobiles; and that, therefore, a motorcycle is equally with an automobile ‘a motor-driven car.’ G. L. c. 90, § 1, contains the following definitions:

“Automobile,' any motor vehicle except a motorcycle.'

“Motorcycle,' any motor vehicle having but two or three wheels in contact with the ground, and a saddle on which the driver sits astride, or a platform on which he stands, or any bicycle having a motor attached thereto and a driving wheel or wheels in contact with the ground in addition to the wheels of the bicycle itself.'

“Motor vehicles,' automobiles, motorcycles and all other vehicles propelled by power other than muscular power, except railroad and railway cars and motor vehicles running only upon rails or tracks, ambulances, fire...