Smith v. Md. Cas. Co.

• Decision Date: 25 January 1933
• Docket Number: No. 6104.,6104.
• Citation: 246 N.W. 451,63 N.D. 99
• Parties: SMITH v. MARYLAND CASUALTY CO.
• Court: North Dakota Supreme Court

63 N.D. 99

246 N.W. 451

SMITH

v.MARYLAND CASUALTY CO.

No. 6104.

Supreme Court of North Dakota.

Jan. 25, 1933.

Syllabus by the Court.

1. Where a policy of insurance against injuries sustained “while operating, driving, riding in, demonstrating, adjusting, repairing or cranking an automobile” contains, near the end of the writing, an exception to the effect that the policy does not protect any “driver or operator of an automobile truck,” such exception is construed most strongly against the insurer.

2. Such policy, by its very language, infers that an automobile “truck” is an automobile, and the term “truck” is to be construed in the ordinary sense and as used in common parlance, when no other definition is given in the policy.

3. Where there is testimony showing that the vehicle in which the insured was riding at the time of the accident belonged to the class known as “commercial car,” according to the trade classification, and was not considered “an automobile truck” in the usual acceptation of the term, and there is conflicting testimony to the effect that the vehicle was known in the trade as a light “truck” and this term involved is susceptible of two meanings, one favorable to the plaintiff and one to the defendant, it is for the jury to determine the fact regarding the classification according to the law applicable to the case.

4. Where there is a question of fact to be submitted to the jury, it is error for the court to take the case from the jury and order a dismissal.

Appeal from District Court, Grand Forks County; A. T. Cole, Judge.

Action by Kathryn Smith against the Maryland Casualty Company. From a judgment for the defendant, and from an order denying her motion for a new trial, the plaintiff appeals.

Reversed, and a new trial ordered.

George A. Bangs, of Grand Forks, for appellant.

Conmy, Young & Conmy, of Fargo, for respondent.

BURR, J.

This action is brought to recover upon a “Special Automobile Accident Policy” in which the plaintiff is named as beneficiary.

At the close of the plaintiff's case the defendant moved the court to dismiss the action, which motion was renewed at the close of the entire case. The court dismissed the jury, and later rendered judgment for the defendant. From the judgment and from the order denying her motion for a new trial, the plaintiff appeals.

Plaintiff is the widow of W. Jay Smith, killed in an automobile accident, occurring May 26, 1930. Defendant had issued to the deceased a “Special Automobile Accident Policy” upon an application by the insured made upon a blank furnished by the company describing the policy as one which would pay for injuries sustained “while operating, driving, riding in, demonstrating, adjusting, repairing or cranking an automobile”; but not insuring “any driver or operator of an automobile truck.” The policy insured the deceased, as specified in the application blank.

Under a heading denominated “Additional Provisions” the policy states: “This policy shall not cover injuries, fatal or non-fatal, suffered: (9) by any person while working on, cranking, driving, or riding in or on any motorcycle, automobile truck, tractor, patrol wagon or fire apparatus or air craft of any description.”

It is conceded the insured was killed in an automobile accident; but the defense is that at that time he was driving and riding in an “automobile truck.”

The issue involves, solely, the nature of the car in which the defendant was riding.

At the time the policy was issued the defendant was the owner of a passenger car and later he purchased the car in question. This new car, when sold to him, was described as a “Ford pick-up.”

The plaintiff apparently concedes that if the accident occurred while the deceased was riding in an “automobile truck,” she cannot recover; but it is her contention that this vehicle was not an “automobile truck” within the purview of the policy. Plaintiff says, in effect, that the policy covered-so far as this case is concerned-accidents in any class of automobile except an “automobile truck”; and, therefore, an accident occurring while riding in a “pick-up” was covered by the policy.

The car involved is not a passenger car as ordinarily understood; that is, it is not a sedan, runabout, coupé, etc. It is one of the well-known varieties of light delivery cars, having a cab on the front part covering the driver's seat, and back of this is an open platform with sides and drop end. The dealer who sold the car testified that this “pick-up is a car mounted on the Ford passenger car chassis with a cab similar to the cab which is mounted on our trucks, and has a box, a steel box, approximately five feet long and four feet, four or five inches wide.” Further, that with the exception of having a heavy rear spring the chassis “is the same as the passenger car chassis,” and that this particular car was of that type. He then described the difference between the chassis on this car and on the Ford truck; that the latter is the heavier chassis, longer wheel base, and “of much heavier construction”; different construction and arrangement of springs, different drive, and different transmission of power from that used on the “pickup” or roadster. He testified, regarding this car in issue, “personally we do not speak of it as being a half ton truck”; the trade calls it a “lite” delivery-that it is not generally considered a truck-though he did say that if any prospective buyer asked for a halfton truck he would show him this type. He said that as a Ford dealer he had three classes of cars for sale, the year this was sold-“passenger cars, commercial cars, and trucks, and this pickup was included in the commercial class.” He explained that they were required to make a ten-day report and this type was reported in the commercial classification; that this was the classification given to it by the Ford Motor Company. Another dealer testified to the same effect. Dealers produced by the defendant testified that in trade parlance, this particular car was called a truck, and also known “as a Pick-up, Light Delivery.” They admitted that the chassis for this pick-up was of the passenger car type, and not the heavier truck type; that in the reports they were required to make every day there were “three separate classes of automobiles in 1929”-passenger, commercial, and truck.

The insured was a civil engineer and contractor and at the time of the accident was on his way to Enderlin to take charge of a contract for excavation. He had with him in this vehicle some of his employees, their luggage, and his surveying instruments. The testimony shows the deceased used this vehicle as a passenger car “for driving around and moving some small stuff from one place to another,” that he had a regular truck for the hauling of freight but would use this car for “an emergency call for repairs * * * if they were small enough to carry in that truck,” for carrying his surveying instruments, and he “may have hauled five gallons or so” of gasoline in it at times.

All through the policy issued, reference is made to “automobile”...