Opinion
Rehearing Denied June 26, 1931
Hearing Granted by Supreme Court July 23, 1931.
Appeal from Superior Court, City and County of San Francisco; Michael J. Roche, Judge.
Action by Mary Bowers, as administratrix of the estate of James T. Bowers, deceased, against the Continental Life Insurance Company. Judgment for defendant, and plaintiff appeals.
Affirmed.
COUNSEL
McEnerney & Morris, of San Francisco, for appellant.
Peter tum Suden and Richard tum Suden, both of San Francisco, for respondent.
OPINION
STURTEVANT, J.
The plaintiff as administratrix of the estate of James T. Bowers, deceased, commenced an action to recover on an accident insurance policy. The defendant answered and the action was tried before the trial court sitting without a jury. The trial court made findings in favor of the defendant and from a judgment entered thereon the plaintiff has appealed and has brought up a bill of exceptions.
On the 23d day of February, 1929, plaintiff’s decedent was driving a Fordson tractor and was sitting on the seat thereof. The tractor was pulling a sled loaded with brush. In making his drive the operator attempted to cross a small ditch. In making that attempt the tractor tipped over backwards and the driver was pinned to the ground underneath. The injuries were so severe that he died within a short period of time. The evidence showed that the Fordson tractor was not equipped to carry passengers; that it had only room for a driver or operator who sat astride on a saddle between the rear wheels; that it was not equipped with a body which would make it suitable for carrying any loads on itself, but it was equipped with a drawbar to pull vehicles; and that the operator rode upon the tractor and not in it. In her opening brief the plaintiff sets forth the following as being pertinent provisions contained in the policy: "Part one. By the wrecking or disablement of any railroad passenger steamship or steamboat or licensed ferry-boat, interurban or street railway car, elevated railway car or subway car, in or on which the insured is traveling as a fare paying passenger. *** Part two. (A) By the wrecking or disablement of any private automobile, motor driven car or horse-drawn vehicle, in which the insured is riding or driving, or by being accidentally thrown from such wrecked or disabled automobile, car or vehicle. (Motorcycles excepted.) (B) By the wrecking or disablement of any public omnibus, 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. (C) By the wrecking of a passenger elevator (elevator in mines excepted), in which the insured is riding as a passenger. *** Part three. (A) By being struck or knocked down or run over while walking or standing in or on a public highway, by any automobile, or any vehicle propelled by steam, cable, electricity, naphtha, gasoline, horse, compressed air or liquid power (excluding injuries sustained while working in a public highway, or while on a railroad right of way). (B) By the burning of a dwelling house, hotel, theatre, office building, lodge room, club house, school building, store, church or barn while the insured is therein and provided the insured is therein at the beginning of the fire and is burned by such fire or suffocated by the smoke therefrom. (C) By being struck by lightning, or in consequence of a cyclone or tornado. (D) By the collapsing of the outer walls of a building. (E) The result of accidental drowning at a public bathing beach during the time that a life-saver is on duty."
The plaintiff contends that an insurance policy must be construed by its written words as it is understood by the class of people to whom it is sold. Amplifying that point it is her claim that the policy held by the decedent insured him against such an accident as described above. However she cites no authority supporting that contention. The defendant claims that a Fordson tractor is not a "motor driven car" as that expression is used in the policy. Both parties seemed to agree that a recovery, if at all, must rest on part two (A). In her complaint the plaintiff described the tractor as a "motor driven car." All dictionaries so define the words that it is perfectly clear that "a vehicle" is a much broader expression than "a car." The policy ex industria maintains that distinction. A policy containing provisions more favorable to the plaintiff than the policy involved in this action was carefully considered by the Supreme Court of New Jersey in Perry v. North American Acc. Ins. Co., 104 N.J.Law, 117, 138 A. 894. The court quotes the provisions of the policy before it and calls attention to the fact that the claimant was riding on a motorcycle. The provisions of that policy were identical with part two (A) of the policy in suit in so far as any issue in this case is concerned. On page 895 of 138 A. (104 N.J.Law, 117), the court said: "The policy uses the phrases ‘horse-drawn vehicles’ and ‘motor-driven cars.’ A motorcycle is a vehicle. If motorcycles were intended to be included, the draftsman of the policy would have used the words ‘motor-driven vehicles.’ After using the word ‘vehicle’ in the phrase ‘horse-driven vehicles,’ it would seem that the use of the phrase ‘motor-driven car’ immediately afterward is significant and indicates a purpose to exclude such a vehicle as a motorcycle from the provisions of the policy. One riding on a motorcycle is more exposed to accidents than one riding in a motor-driven car. A car stands upright on four wheels whether in operation or stopped. It is protected by bumpers in front and rear. It has a body in which the passengers sit which protects them in some measure from the perils of the highway. One riding on a motorcycle cannot keep it in equilibrium when not in operation. When stopped he must get off or place his feet, or one foot, upon the ground. A motorcycle has no front or rear protection in the form of fenders or bumpers. It has no body for the protection of the rider. A rider is therefore more exposed to the dangers incident to congested traffic. For these reasons, which make the risk of riding on a motorcycle greater than that of riding in a motor-driven car, we think the rider on a motorcycle was intentionally excluded from the provisions of the policy by the use of the language employed."
In that case as in this case the policy sued on used the phrase "in which insured is riding or driving." Then addressing itself to the effect of that phrase on the rights of the claimant the court said: "The use of the preposition ‘in,’ in the clause of the policy reading ‘or motor-driven car in which insured is riding or driving, is also significant. One riding on a motorcycle is not referred to as riding ‘in’ a motorcycle, but ‘on’ a motorcycle. A passenger or one driving a car is not usually referred to as riding ‘on’ a car but ‘in’ a car. Where a policy uses the words ‘or motor-driven car in which the insured is riding or driving,’ it is for the purpose of limiting the insurer’s liability. The reason is the one we have indicated, the greater safety of the insured ‘in’ a car. This distinction has been recognized in a number of cases." In closing on page 896 of 138 A. (104 N.J.Law, 117) the court said: "For the reasons herein somewhat briefly set forth, we are of the opinion that the ruling of the learned trial judge that a ‘motorcycle’ is not a ‘motor-driven car’ within the meaning of the policy in this case was correct." So in this case it is clear that one riding on a motorcycle would not be entitled to recover for the reason that such machines are expressly excepted from the provisions of the policy. As to one riding on a tractor he may not recover for both of the reasons set forth by the Supreme Court of New Jersey.
The judgment is affirmed.
We concur: NOURSE, P.J.; SPENCE, J.