Westerhausen v. Allied Mut. Ins. Co.
| Decision Date | 08 March 1966 |
| Docket Number | No. 51912,51912 |
| Citation | 258 Iowa 969,140 N.W.2d 719 |
| Parties | Johanne M. WESTERHAUSEN, Administrator of the Estate of Joseph S. Westerhausen, Appellee, v. ALLIED MUTUAL INSURANCE COMPANY, Appellant. |
| Court | Iowa Supreme Court |
Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, for appellant.
Parrish, Guthrie, Colflesh & O'Brien, Des Moines, for appellee.
The sole question presented by this appeal is whether the exclusion in the uninsured motorist provisions of a family automobile policy of insurance is applicable so as to defeat plaintiff's claim filed thereunder. The trial court held it was not, and we agree.
The facts are not in dispute. On or about May 20, 1964, Joseph S. Westerhausen, plaintiff's decedent herein, while operating his two-wheeled motorcycle on the streets of Des Moines, Iowa, was involved in an accident with an uninsured motorist, Dennis J. Ryan. At the time Mr. Westerhausen was insured under a Family Automobile Policy issued by the defendant, Allied Mutual Insurance Company. On June 12, 1964, Mr. Westerhausen died, and his wife, acting as the administrator of his estate, made claim against Ryan for the alleged wrongful injuries and death of decedent. Being advised that Ryan and the automobile driven by him were uninsured at the time of the accident, plaintiff notified defendant of the facts and made claim against it under Part IV of the insurance policy, which provided protection against uninsured motorists. Defendant denied the claim upon the ground that Mr. Westerhausen was occupying an automobile, other than an insured automobile, owned by Mr. Westerhausen at the time of the accident, thus falling within the exclusion provided by sub-paragraph (a) set forth in Part IV of the policy. This suit followed to determine the rights of the parties.
Part IV of the involved policy provides:
'Uninsured Motorists (Damages for Bodily Injury). To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury', sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration. * * *
The parties seem to agree that, had the insured been struck by the Ryan vehicle while walking or riding a bicycle, he would have been convered under Part IV, and they have stipulated the only issue that need be determined in this case is whether the word 'automobile', as used in the policy under the 'Exclusions', means a motorcycle.
I. While there is some authority cited by appellant wherein a motorcycle has been included in the term 'automobile', they are readily distinguishable and are not persuasive in this situation. We find the language of the policies construed in the cited cases is not similar to that in the policy before us. See Hartford Accident and Indemnity Co. v. Come (1956), 100 N.H. 177, 123 A.2d 267; Lang v. General Insurance Company of America, 268 Minn. 36, 127 N.W.2d 541. The definition appellant cites in Black's Law Dictionary is not helpful here. It simply states the term 'automobile' means 'a vehicle for the transportation of persons or property on the highway, carrying its own motive power and not operated upon fixed tracks.'
Appellant refers us to the definitions found in chapter 321 of the 1962 Code. For the purpose of that chapter, section 321.1, sub-section 2, states: "Motor vehicle' means every vehicle which is self-propelled but not including vehicles known as trackless trolleys * * *. The terms 'car' or 'automobile' shall be synonymous with the term 'motor vehicle'.' And section 321.1, sub-section 3, states: "Motorcycle' means every motor vehicle having a saddle or seat for the use of the rider and designed to travel on not more than three wheels * * * including a motor scooter and a bicycle with motor attached but excluding a tractor.' Its argument that since an automobile is synonymous with motor...
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...owner, commonly treated separately in many other ways (Lofquist v. Insurance Co., 263 N.C. 615, 140 S.E.2d 12; Westerhausen v. Allied Mutual Ins. Co., 258 Iowa 969, 140 N.W.2d 719), is palpably arbitrary or irrational. The difference between the subject of a legislative classification need ......
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...cases, the circumstances present are not exactly analogous to those involved in the instant case. In Westerhausen v. Allied Mutual Ins. Co., 258 Iowa 969, 140 N.W.2d 719 (1966), and Valdes v. Prudence Mutual Cas. Co., 207 So.2d 312 (Fla.App.1968), both relied on by this court in Northland, ......
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