Opinion
No. 31274.
May 28, 1934.
1. INSURANCE.
Terms of accident policy should be understood in plain, ordinary, and popular sense.
2. INSURANCE. Trailer used in moving house along highway and drawn by two tractors held not "automobile" within accident policy insuring against injury resulting from being struck by automobile.
Such trailer could not be considered as "automobile" within terms of policy, it appearing that the trailer consisted of six strong wheels operating on large axles and so built that small house could be loaded thereon, and that house could be moved along the public highway by attaching two tractors as motive power.
APPEAL from Circuit Court of Forrest County.
Paul B. Johnson, of Hattiesburg, for appellant.
Mississippi Code 1930, Annotated, section 5565, defines "motor vehicle" as follows: "The term `motor vehicle' shall include all vehicles propelled by any power other than muscular, whether the same be used for pleasure or business or commercial purposes, except road rollers, street sprinklers, fire engines and fire department apparatus, police patrol wagons, and such vehicles as run only on rails or tracks.
Sections 5566 and 5568, Code of 1930; Webster's New International Dictionary; Words Phrases (1st series), page 650.
A statute requiring the licensing of operators of "automobiles" includes a road locomotive or traction engine used to draw cars.
Emerson Troy Granite Co. v. Pearson, 74 N.H. 22, 64 A. 582; Carter v. State, 12 Ga. App. 430, 78 S.E. 205; Baker v. Fall River, 178 Mass. 53, 72 N.E. 336; Cunningham v. Castle, 127 App. Div. 580, 111 N.Y.S. 1057; Bouvier's Law Dictionary; Babbitt's Law Applied to Motor Vehicles; The New International Encyclopedia; Cook v. Modern Brotherhood of America, 131 N.W. 334.
The courts hold that where there is any fair doubt as to the meaning of terms used in such contracts, they must be construed most strongly against the party selecting the language.
14 R.C.L. 926; United States Mutual Acc. Asso. v. Barry, 131 U.S. 100, 9 Sup. Ct. 755; Dozier v. Fidelity Casualty Co., 13 L.R.A. 166, 46 Fed. 448; National Masonic Accident Asso. v. Shryock, 20 Circuit Court of Appeals, 5, 36 U.S. App. 658; Travelers' Ins. Co. v. Selden, 24 Circuit Court of Appeals, 96, 42 U.S. App. 253, 78 Fed. 289; Kascoutas et al. v. Federal Life Ins. Co., 22 A.L.R. 294; Breen v. Great Western Accident Ins. Co., 190 Iowa, 1172, 179 N.W. 931; Herrick v. Arborio, 258 N.Y. Supp. 5. Deavours Hilbun, of Laurel, for appellee.
The policy sued on is an accident insurance policy. In construing the word "automobile" used in this policy, it should be understood in its plain, ordinary and popular sense.
1 Couch's Cyclopedia of Insurance Law, sec. 178, page 363; Hart v. North American Accident Ins. Co., 122 So. 471.
In those cases where private contracts are entered into it appears to be the uniform holding of the courts passing upon that subject that in a contract where the word "automobile" is used, it is to be taken in its ordinary and popular acceptation, which is a motor-driven vehicle having four wheels, a body, sides, and top, suitable and intended for the conveyance of persons, and does not include such a vehicle as a motorcycle. In the policy under consideration the liability is restricted to accidents to the insured while riding or driving in a private horse-driven vehicle or private motor-driven automobile.
Neighbors v. Life Casualty Ins. Co. of Tennessee, 31 S.W.2d 418; Liberty Highway Co. v. Callahan, 157 N.E. 708; Bowers v. Continental Life Ins. Co., 5 P.2d 608.
Argued orally by Paul B. Johnson, for appellant, and by Henry Hilbun, for appellee.
Appellant's decedent was engaged, at the time of his death, in the business of moving small houses, for which purpose he was using a vehicular contrivance which, for want of a better name, we may call a trailer. It consisted of six strong wheels operating upon large axles, and the device was of such character that a small house could be loaded upon it, and the house could be moved along the public highways by attaching two tractors as the motive power. While operating this contrivance with a house loaded upon it, appellant's decedent was run over by the trailer and was killed. The accident happened while the decedent was walking on a public highway and alongside the said trailer.
Appellant's decedent was insured by an accident policy which insured against injury "in consequence of being struck, run down or run over by a moving automobile while the insured is walking on or across a public highway." The question is, whether the contrivance above briefly described was an automobile within the meaning of the policy contract. In Hart v. Accident Ins. Co., 154 Miss. 400, 405, 122 So. 471, 472, we said that "the terms used in an accident insurance policy should be understood in their plain, ordinary, and popular sense;" and adhering to that rule of interpretation, it was held in Neighbors v. Life Cas. Ins. Co., 182 Ark. 356, 31 S.W.2d 418, that the term "automobile," as used in an accident policy, must be interpreted according to its ordinary acceptation and to mean a motor-driven vehicle having four wheels, body, sides, and top, suitable and intended for the conveyance of persons upon the public roads and streets. While we would not commit ourselves to a definition of the term "automobile" in a contract of this kind so narrow in specifications as that given in the Neighbors case, we do assent to the principle of adjudication therein illustrated, and we therefore hold that the machine or vehicular contrivance in this case was not an automobile within the terms of the policy.
Appellant argues that to include the case here before us as coming within the term would not be to overstrain the term, because the insurer knew at the time the policy was issued, as the argument asserts, that the insured was engaged in this business, and was using the vehicular contrivance above described, and that the parties should therefore be held to have contemplated the device as within the protection of the policy. Leaving aside other difficulties in sustaining that contention, the evidence fails to disclose that the decedent was using or had begun to use the contrivance at the time the policy was issued. The application for the policy is exhibited in the record, and we note the following answers made by the decedent in his application: "What is your occupation? Real estate dealer. What is your work in connection with automobiles, trucks or other vehicles? None."
Affirmed.