State ex rel. Life Ins. Co. v. Trimble

• Citation: 38 S.W.2d 1017
• Decision Date: 21 May 1931
• Docket Number: No. 30263.,30263.
• Parties: THE STATE EX REL. CONTINENTAL LIFE INSURANCE COMPANY v. FRANCIS H. TRIMBLE ET AL., JUDGES OF KANSAS CITY COURT OF APPEALS.
• Court: Missouri Supreme Court

38 S.W.2d 1017

THE STATE EX REL. CONTINENTAL LIFE INSURANCE COMPANY v. FRANCIS H. TRIMBLE ET AL., JUDGES OF KANSAS CITY COURT OF APPEALS.

No. 30263.

Supreme Court of Missouri. Division One.

May 21, 1931.^*

Certiorari to Kansas City Court of Appeals.

WRIT QUASHED.

Fred A. Boxley and Elmer B. Hodges for relator.

(1) It is not necessary that the case decided by the Court of Appeals and the controlling case decided by the Supreme Court should involve the same state of facts, provided the opinion of the Court of Appeals violates the spirit of the ruling of the Supreme Court. State ex rel. v. Reynolds, 265 Mo. 88; In re Peper v. Bell, 286 Mo. 139. (2) The decision of the Court of Appeals that this motorcycle (called by it a "side-car outfit") is a "car," is in conflict with the decisions of this court holding that the words used in a contract should be given their usual and popular meaning. State ex rel. Casualty Co. v. Cox, 14 S.W. (2d) 602; Wendorff v. Life Ins. Co., 318 Mo. 363; State ex rel. Ins. Co. v. Trimble, 297 Mo. 659; Mecartney v. Trust Co., 274 Mo. 224; Liggett v. Bank, 233 Mo. 590; Renshaw v. Ins. Co., 103 Mo. 595. (3) The decision of the Court of Appeals that a person riding astride the motorcycle part of a motor-tricycle is riding in the vehicle is in conflict with decisions of this court which hold that words used in contracts are to be given their usual and popular meaning. State ex rel. Casualty Co. v. Cox, 14 S.W. (2d) 602; Wendorff v. Life Ins. Co., 318 Mo. 363; State ex rel. Ins. Co. v. Trimble, 297 Mo. 659; Mecartney v. Trust Co., 274 Mo. 224; Liggett v. Bank, 233 Mo. 590; Renshaw v. Ins. Co., 103 Mo. 595. (4) The ruling of the Court of Appeals that since the term motor-driven car in the policy provision is preceded by the term automobile, a motor-driven car must be something other than an automobile, is in conflict with the decisions of this court holding that when there is no ambiguity there is no room for construction. State ex rel. Casualty Co. v. Cox, 14 S.W. (2d) 600; State ex rel. Life Ins. Co. v. Allen, 301 Mo. 631; State ex rel. Ins. Co. v. Trimble, 297 Mo. 659; State ex rel. Fire Ins. Co. v. Ellison, 269 Mo. 410; St. Louis v. Railroad, 228 Mo. 736. (5) The ruling of the Court of Appeals that no significance should be attached to the fact that the words in or on in the first policy provision are changed and restricted to the single word in in the second clause of the policy, is in conflict with the decisions of this court holding that in construing the contract the court should consider the whole contract and all the terms thereof, since one clause may modify, limit or illuminate the other. Mathews v. Modern Woodmen, 236 Mo. 326; St. Louis v. Railroad, 228 Mo. 712; Donovan v. Boeck, 217 Mo. 70; Wendorff v. Life Ins. Co., 318 Mo. 363; (6) The ruling of the Court of Appeals refusing to construe the word in as being of narrower signification than the word on is in conflict with the decision of this court that the word in is of narrower signification than the word on. Turner v. Fidelity & Casualty Co., 274 Mo. 260.

Burrus & Burrus and Mosman, Rogers & Buzard for respondents.

(1) The respondents had the right to hold as a matter of opinion, in a case of first impression, there being no previous ruling by the Supreme Court, that the side-car outfit came within the classification of motor-driven cars. State ex rel. Calhoun v. Reynolds, 289 Mo. 506, 233 S.W. 483; State ex rel. Packing Co. v. Reynolds, 287 Mo. 697, 230 S.W. 642; State ex rel. Peters v. Reynolds, 214 S.W. 122. Even though the Court of Appeals may have erred as a matter of opinion, such fact does not authorize this court on certiorari to quash the opinion. State ex rel. Calhoun v. Reynolds, 289 Mo. 506, 233 S.W. 483; State ex rel. Packing Co. v. Reynolds, 287 Mo. 697, 230 S.W. 642; State ex rel. Wohl v. Reynolds, 272 Mo. 588, 199 S.W. 978. A misapplication of the rules of other cases does not constitute error in this proceeding when the facts are in no way analogous to the facts of those cases. State ex rel. Calhoun v. Reynolds, 289 Mo. 506, 233 S.W. 483; State ex rel. Trust Co. v. Reynolds, 278 Mo. 695, 213 S.W. 804. The court of appeals has applied proper rules of construction in its opinion. State ex rel. Ins. Co. v. Allen, 267 S.W. 379; Mathews v. Modern Woodmen, 236 Mo. 342. (2) The decision of the respondents in holding that the side-car outfit came within the classification of motor-driven car is not in conflict with any ruling of this court. There are no decisions of this court on such a state of facts. Outside authorities abundantly support the holding. Webster's International Dictionary; Century Dictionary; Funk and Wagnall's Dictionary; 2 R.C.L. 1167; 2 C.J. 611; Whitaker v. Hitt, 285 Fed. 799; Bolt v. Ins. Co., 152 S.E. 766. (3) The holding of respondents that the assured was riding in a motor-driven car is not in conflict with, but is supported by, the rulings of this court. Schmohl v. Ins. Co., 189 S.W. 597; Schmohl v. Ins. Co., 197 S.W. 60, cited with approval in Turner v. Fidelity & Casualty Co., 274 Mo. 260, 202 S.W. 1081; Bolt v. Ins. Co., 152 S.E. 766.

RAGLAND, J.

This case comes to the writer for an opinion on reassignment. It is an original proceeding in certiorari wherein the relator seeks to have quashed, on the ground of conflict, the opinion and judgment of the Kansas City Court of Appeals in the case of Harvey Burrus, Administrator, appellant, v. Continental Life Insurance Company, respondent, lately before that court on appeal from the Circuit Court of Jackson County. The rulings of the Court of Appeals and the facts on which they are based are shown by the opinion, which is as follows:

"This is a suit on an insurance policy, whereby John B. Lobb was insured against death or disability resulting directly, independently, and exclusive of all other causes from bodily injury effected solely through external, violent and accidental means and sustained by the insured in the manner following:

"`Part One.

"`(a) By the wrecking or disablement of any railroad passenger car or passenger steamship or steamboat, in or on which the insured is travelling 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 the insured is traveling as a fare-paying passenger and such injuries so sustained shall result in any of the specific losses set forth in this Part 1.

"`(b) By the wrecking or disablement of any private automobile, motor-driven car or horse-drawn vehicle in which the insured is riding or drawn, or by being accidentally thrown from such automobile, car or vehicle.'

"While this policy was in effect the assured was riding on a motorcycle to the side of which there was attached a body designated for the carriage of a passenger and supported by a third wheel. The evidence indicated that the particular motorcycle was not constructed exactly the same as an ordinary motorcycle. It was so designed that it could not be operated at as high a rate of speed as the ordinary motorcycle, and also was designed so that the body could be attached thereto. A witness who was in the motorcycle business testified that the whole machine was usually designated as a `side-car outfit.' The assured was upon the saddle of the motorcycle proper, and was operating the same when he received injuries which caused his death. The trial court sustained a demurrer to the evidence. The only question presented below was whether or not the assured came to his death from bodily injuries sustained by the wrecking of a `motor-driven car' in which he was riding or drawn.

"Plaintiff has appealed.

"Respondent has cited cases wherein it is held that a motorcycle is not a `motor-driven car.' [Salo v. North American Acc. Ins. Co. (Mass.), 153 N.E. 557; Anderson v. Life & Casualty Ins. Co., 197 N.C. 72, 147 S.E. 693; Laporte v. North American Acc. Ins. Co., 161 La. 933; Perry v. North American Acc. Ins. Co. (N.J.), 138 Atl. 894.] In each of these cases the policy insured against injury or death caused `by the wrecking or disablement of any private horse-drawn vehicle or private motor-driven car in which insured is riding or driving.' In each instance the motorcycle was a machine running on two wheels without side-car attachment. The Massachusetts and Louisiana cases were decided in 1926, the New Jersey case in 1927, and the North Carolina cases in 1929. The New Jersey and North Carolina cases approved what was said in the Massachusetts case almost in toto. All of the cases point out that the word `car' is ordinarily used in speaking of an automobile, and that in ordinary parlance a motorcycle is not referred to as a car, but is spoken of as a motorcycle; that a motorcycle, having two wheels, is a machine more in the nature of a bicycle equipped with a motor power. It is also pointed out that the policy provided for protection if the assured rode in or on a railroad car or steamboat, but only for protection if the assured rode in a horse-drawn vehicle or a motor-driven car. In some of these cases it is stated that the motorcycle being supported by only two wheels, does not have the equilibrium of an automobile; that it is not supplied with bumpers or by a body in which the motor-cyclist may drive or ride and for these reasons the use of the motorcycle is much more hazardous than the use of an automobile.

"We depart for the present from further consideration of these cases to determine whether or not the conveyance which was used in this case should be held, as a matter of first impression, to come within the provisions of this policy. In this case the conveyances mentioned in the policy are automobiles, motor-driven cars, and horse-drawn vehicles. It is certain that the conveyance is motor-driven. If it is a car it is one of...