Seaford v. Nationwide Mut. Ins. Co., 381

• Decision Date: 20 January 1961
• Docket Number: No. 381,381
• Citation: 117 S.E.2d 733,85 A.L.R.2d 496,253 N.C. 719
• Parties: , 85 A.L.R.2d 496 William W. SEAFORD v. NATIONWIDE MUTUAL INSURANCE COMPANY.
• Court: North Carolina Supreme Court

Page 733

117 S.E.2d 733

253 N.C. 719, 85 A.L.R.2d 496

William W. SEAFORD v. NATIONWIDE MUTUAL INSURANCE COMPANY.

No. 381

Supreme Court of North Carolina.

Jan. 20, 1961

Peter W. Hairston, Mocksville, for plaintiff appellant.

Walser & Brinkley, Lexington, for defendant appellee.

WINBORNE, Chief Justice.

Both plaintiff and defendant agree that the questions presented on this appeal are these:

'1. Is a tractor-trailer unit not 'an automobile' within the meaning of the so-called non-owned coverage provisions of the Family Comprehensive Liability Policy?

'2. Was the plaintiff a textile worker who had been employed to operate a tractor-trailer unit for the one trip only, using this equipment 'in any business or occupation' of the plaintiff within the meaning of the policy?

'3. Did the non-waiver agreement entered into by the plaintiff apply under the circumstances herein to the action taken by the defendant company in the filing of a notice of liability coverage designated as SR-21 with the North Carolina Department of Motor Vehicles?'

The word 'automobile' is derived from the Greek word 'autos' meaning self, and the Latin word 'mobilis' meaning freely movable, changing its own place or able to effect a change of its own place. The word has been defined by the North Carolina Supreme Court in Jernigan v. Hanover Fire Ins. Co., 235 N.C. 334, 69 S.E.2d 847, 848. In that case Justice Ervin, writing for the Court, said: 'Inasmuch as there is nothing in the policy indicating that the parties intended the word automobile to have a different meaning, it is to be taken and understood in its ordinary and popular sense. Bailey v. Life Ins. Co., 222 N.C. 716, 24 S.E.2d 614, 166 A.L.R. 826; Stanback v. Winston Mut. Life Ins. Co., 220 N.C. 494, 17 S.E.2d 666 * * * When it is employed in its general sense, the word automobile embraces all kinds of motor vehicles, except motorcycles, designed for use on the highways and streets for the conveyance of either persons or property * * * When it is used in its particular sense, the term automobile includes such motor vehicles, other than motorcycles, as are intended for use on the highways and streets for the carriage of persons only * * *.'

The Court held in the Jernigan case, supra, that a farm tractor cannot be properly classified as an automobile in either the general or the particular sense since a tractor is '* * * neither designed nor suitable for use on highways and streets for the transportation of either persons or property. ' Therefore, in the present case a different question is presented, namely, whether a tractor-trailer unit is an 'automobile' as used in the insurance policy in question.

There have been numerous cases in other jurisdictions holding that a truck is an 'automobile' within the meaning of provisions of an automobile insurance policy. See Life & Casualty Ins. Co. of Tenn. v. Metcalf, 240 Ky. 628, 42 S.W.2d 909; Kellaher v. City of Portland, 57 Ore. 575, 110 P. 492, 112 P. 1076; Continental Casualty Co. v. Buckeye Union Cas. Co., Ohio Com.Pl.1957, 143 N.E.2d 169; Life & Cas. Ins. Co. of Tenn. v. Roland, 45 Ga.App. 467, 165 S.E. 293; Lonsdale v. Union Ins. Co., 167 Neb. 56, 91 N.W.2d 245.

The absence from the policy in question of express unequivocal language expressly excluding a tractor-trailer unit by appropriate words saving itself from liability to the insured where an accident occurs while riding in an 'owned automobile or any non-owned automobile' tends to show that by the use of the word 'automobile' the policy did not thereby exclude an 'owned' or 'any non-owned' tractor-trailer unit. It is apparent that the word 'automobile' was selected and used in the policy in its common, general and popular sense.

In substance, the defendant company contends that whatever may be the meaning of the word 'automobile' when contained in a policy which does not contain a definition of that term (here there is no such definition), that such definition ex vi terminii excludes a tractor-trailer unit.

It then comes to this: We must forfeit entirely the 'use of the owned automobile or any non-owned automobile' provision or conclude that the use of the word 'automobile' therein must be given its ordinary and commonly accepted meaning. When so considered the conclusion is that a tractor-trailer unit is an 'automobile' within the meaning of the policy herein. Furthermore, it is an established principle of law in this State that when an insurance policy is reasonably susceptible of more than one interpretation, or if the language is ambiguous, the construction more favorable to the assured will be adopted. See Johnston v. New Amsterdam Cas. Co., 200 N.C. 763, 158 S.E. 473; Conyard v. Life & C. Ins. Co., 204 N.C. 506, 168 S.E. 835; Stanback v. Winston Mut. Life Ins. Co., supra; Bailey v. Life Ins. Co., supra.

In the Johnston case the Court in opinion by Adams, J., expressed the principle in this manner: 'We recognize the established principles that a policy of insurance, if the language is ambiguous or susceptible of more than one interpretation, should be given a construction favorable to the assured * * *. ' [200 N.C. 763, 158 S.E. 475.]

And in the Conyard case it is said: 'The rule of construction is that when an insurance policy is reasonably susceptible of two interpretations, the one more favorable to the assured will be adopted. ' The policy having been prepared by the insurers, it should be construed most strongly against them.'' [200 N.C. 763, 168 S.E. 836.]

For reasons stated, a tractor-trailer unit is an 'automobile' within the meaning...