Sant v. Continental Life Insurance Co., St. Louis, Missouri

• Court: Idaho Supreme Court
• Writing for the Court: GIVENS, C. J.
• Citation: Sant v. Continental Life Insurance Co., St. Louis, Missouri, 291 P. 1072, 49 Idaho 691 (Idaho 1930)
• Decision Date: 19 September 1930
• Docket Number: 5551
• Parties: LESTER C. SANT, Administrator of the Estate of GEORGE SANT, Jr., Deceased, Respondent, v. CONTINENTAL LIFE INSURANCE COMPANY, ST. LOUIS, MISSOURI, a Corporation, Appellant

291 P. 1072

49 Idaho 691

LESTER C. SANT, Administrator of the Estate of GEORGE SANT, Jr., Deceased, Respondent, v. CONTINENTAL LIFE INSURANCE COMPANY, ST. LOUIS, MISSOURI, a Corporation, Appellant

No. 5551

Supreme Court of Idaho

September 19, 1930

INSURANCE-ACCIDENT POLICY-CONSTRUCTION OF.

1. Horse-drawn road grader going to place of work held "vehicle," within accident policy.

2. Insured riding on rear platform of horse-drawn grader held "in" grader within accident policy.

3. Where road grader blade was bent and side of vehicle was sprained, held, grader was "disabled" within accident policy.

4. Where insured, who had been riding on platform of road grader, was found lying in road and grader was shown to have struck rock, deduction that insured was riding in vehicle and thrown therefrom at time of accident held authorized.

5. Provisions of policy should be construed favorably to insured.

APPEAL from the District Court of the Fifth Judicial District, for Franklin County. Hon. Jay L. Downing, Judge.

Action to recover on life insurance policy. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent. Petition for rehearing denied.

P. M Condie and Gustin & Pence, for Appellant.

A vehicle is an instrumentality for transporting persons or things. (39 Cyc. 1125; Webster's Dictionary Bouvier's Law Dictionary; 8 Words and Phrases, p. 7284; National Fire Ins. Co. v. Elliott, 7 F.2d 524, 42 A L. R. 1126; Van Bokkelen v. Travelers' Ins. Co., 34 A.D. 399, 54 N.Y.S. 307.)

Vehicle should be construed as limited to other vehicles of a like character, with those mentioned in the same connection. ( Gagnier v. City of Fargo, 11 N.D. 73, 95 Am. St. 707, 88 N.W. 1030; Page on Contracts, sec. 2026.)

Meaning of the word "in" in the phrase "riding in." (Aetna Life Ins. Co. v. Vandecar, 86 F. 282; Van Bokkelen v. Travelers' Ins. Co., supra; London Assur. Corp. v. Thompson, 22 A.D. 64, 47 N.Y.S. 830; 14 R. C. L. 420; Hendrickson v. Employers' Liability Assur. Corp., 62 F. 893.)

John A. Carver and Parker P. Carver, for Respondent.

Machines, instrumentalities, contrivances and implements held to be vehicles:

"A combined thresher and cleaner, mounted on axles and wheels, would, while being drawn from farm to farm, be a 'vehicle,' within Workmen's Compensation Act, par. 2, group 41." (Vincent v. Taylor Bros., 180 A.D. 818, 168 N.Y.S. 287, 288.)

The term "vehicle" includes a threshing machine and separator. (Heib v. Town of Big Flats, 66 A.D. 88, 73 N.Y.S. 86.)

"Tanks which are known as sprinkling carts mounted on wheels and driven through the streets, held to be vehicles." ( City of St. Louis v. Woodruff, 71 Mo. 92.)

Vehicle a conveyance--"The terms 'private or public conveyance' have no meaning in this policy, except the ordinary import of the words. They import traveling by some vehicle or instrument of conveyance other than the legs of a man walking and carrying his own body." (Ripley v. Railway Passengers' Assur. Co., 20 F. Cas. (No. 11,854), p. 823, at p. 824.)

A contract of insurance prepared by an insurance company will be construed liberally as against insured and strictly as against the company.

"When a doubt arises in respect to the application, exceptions to, or limitations to liability, you will adopt the construction most favorable to the plaintiff." (Clarke v. New Amsterdam Casualty Co., 180 Cal. 76, 179, P. 195, at p. 197.)

"Notwithstanding the conflicting views of courts of last resort of which the defendant doubtless has had knowledge, it persists in the use of this form of policy, ambiguous though it has been found to be. There is every reason, therefore, for applying the familiar rule that contracts of this character, if uncertain, will be construed favorably to the insured." (Grant Lumber Co. v. North River Ins. Co., 253 F. 83, at p. 88.)

GIVENS, C. J. Budge, Lee, Varian and McNaughton, JJ., concur.

OPINION

GIVENS, C. J.

February 1, 1928, George Sant, Jr., took out with the appellant company a limited accident policy issued only to readers of the "Deseret News" of Salt Lake City. On November 24, 1928, while the policy was in force, he was injured in such a way that two days thereafter he died and this action was instituted by his son, as administrator, to recover under subdivision A of part 2 of the policy, which provided as follows:

($ 2,500 for loss of life) "By the wrecking or disablement of any automobile (motorcycles excepted) or horse-drawn vehicle not plying for public hire in which the insured is riding or driving or by being accidentally thrown from such wrecked or disabled automobile or vehicle."

At the conclusion of plaintiff's case the defendant presented no evidence but moved for a nonsuit, which was denied; thereupon plaintiff moved for a directed verdict, which motion was granted.

The only evidence as to the accident was given by Thomas J Reeder and in substance is as follows: That Reeder was overseer of certain road work being done south of Treasureton on the day in question; that the deceased was employed in the same work and a little after noon, having secured his dinner, was coming up the road between North Treasureton and South Treasureton; that he was at that time riding upon a road grader, built on four wheels, with iron bars for spreaders, and a reversible blade swing underneath. The front wheels were about two and one-half feet apart, two feet high through the center, separated by an iron shaft; the rear wheels were about three feet in diameter, seven feet between the front and rear wheels, connected with iron bars. On the rear part of the grader is a wooden platform about one and one-half feet square for the man who operates the grader to stand on, and on the front, a seat for the driver. The grader was drawn by four horses hitched on each side of the tongue on four horse eveners; that there are wheels, on the rear portion, about four feet above the platform on which the operator stands, which raise and lower the blade; that Mr. Sant, the deceased, was seen by the witness to be standing on the platform and at that time the grader was to go a distance of about 500 yards where Mr. Sant and the driver would being actual work on the road. The horses were walking fast, about five miles an hour and after they had gone about 150 yards of the 500, the witness noticed the deceased lying on the ground. When he came up to him the deceased complained of having been hit in the abdomen, was taken home, given medical attention, and as stated above, died in two days. Examination of the grader and the scene of the accident immediately after the accident disclosed that just at the place of the accident the blade of the grader had hit a stone or rock in such a manner as to chip off a portion of the rock, throw the grader sideways, and so damage and bend the blade as to require its replacement thereafter and so...