The plaintiff is the beneficiary in a policy of insurance issued by the defendant to Charles H. Bolt, a son of the plaintiff, insuring him in the sum of $1,000 against loss of life, limb, or sight by accidental means. The insured, while riding on a motorcycle, collided with an automobile and was killed.
The condition upon which the insurance company was liable under the policy was that he be injured "by the collision of or by an accident to any private horse-drawn vehicle or motor-driven car in which insured is riding or driving."
The sole point in the case is whether a motorcycle is a motor-driven car within the terms of the policy.
The case was tried before his Honor Judge Dennis and a jury, and at the conclusion of all of the testimony, upon motion of plaintiff's attorney, his Honor directed a verdict in favor of the plaintiff for the amount of the policy, and from the judgment entered thereon the defendant company has appealed.
It appears that, upon the conclusion of the testimony, and after the motion for a directed verdict had been argued, his Honor took the motion under consideration upon agreement with counsel that the jury might be discharged, and that any judgment rendered by his Honor would have the same effect as if the verdict had been actually signed by the jury.
Later, his Honor, on March 12, 1929, signed an order holding that the policy which referred to a "motor-driven *Page 128 car in which insured is riding or driving" included a motorcycle.
I have been able to find, upon a thorough search of the authorities, only the following cases which bear directly upon the question at issue. Salo v. Ins. Co., 257 Mass. 303,153 N.E., 557, 558; Laporte v. Ins. Co., 161 La., 933,109 So., 767, 768, 48 A.L.R., 1086; Perry v. Ins. Co.,104 N.J. Law, 117, 138 A., 894, 895; Silverstein v. Ins. Co.,237 N.Y., 391, 143 N.E., 231, 35 A.L.R., 32; Colyer v.Ins. Co., 132 Misc. Rep., 701, 230 N.Y.S., 473; Andersonv. Ins. Co., 197 N.C. 72, 147 S.E., 693, 694.
The precise question at issue was decided in each one of the above-stated cases in favor of the present contention of the insurance company that the descriptive term "motor-driven car" did not cover a motorcycle. I have found not one reaching a contrary conclusion.
In Laporte v. Ins. Co., supra, the Court said:
"Because of the unusual risk assumed by those riding upon motorcycles, it is plain that these machines were excluded intentionally from the policy, not in express terms, it is true, but by restricting recovery only to cases of accidents to the insured arising by being thrown from `any privatehorse-driven vehicle, or motor-driven car, in which such insuredis riding or driving.' thereby clearly indicating a motor-driven car with a body, and having more than two wheels as a support, and as a protection to the driver against accidents.
"So there is every reason, from the standpoint of risk and liability, why defendant insurance company should exclude motorcycles from its policy, and none whatever to induce it to include such dangerous machines, upon the payment of the negligible sum of 50 cents per year for an indemnity risk of $1,000. A motorcyclist may ride upon his machine, but he cannot ride in it. A motorcycle is not known as a `motor-driven car,' or as a `motorcar,' in the general and popular sense of that term. It would be difficult to conceive *Page 129 that a garage owner would send a motorcycle to a customer to ride in when he had ordered a `motorcar.' It would be more difficult to conceive that such customer would accept such a machine as a `motorcar' if sent. A policy of insurance is a contract between the parties and is the special law of the case as far as they are concerned."
In Perry v. Ins. Co., supra, the Court said:
"Our examination of the provision of the policy sued on bearing on the present controversy has led us to the conclusion that the correct interpretation of the terms of the policy excludes a motorcycle from the class of a motor-driven car. There is no ambiguity in the language of the policy. The principle of law that when an ambiguity exists the policy should be liberally construed against the company and in favor of the insured has no application. The ordinary and usual meaning of the words must be sought and given to them. Where the words are used to express the meaning of the party using them, the Court will not adopt a strained and improbable construction. Bew v. Travelers' InsuranceCo., 95 N.J. Law, 533, 112 A., 859, 14 A.L.R., 983. 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-drawn 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, *Page 130 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.
"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 Colyer v. Ins. Co., 132 Misc. Rep., 701,230 N.Y.S., 473, it was held that a motorcycle was not an "automobile" within the terms of an accident insurance policy.
In Anderson v. Ins. Co., supra, it was held that a motorcycle was not a "motor-driven car" within the terms of a travel and pedestrian policy insuring against injuries sustained by insured by collision of or accident to a "motor-driver car in which insured is riding or driving." (The defendant in that case was the same as in this and the policy identical.) The Court followed the Laporte, Perry, and Salo.cases, supra, saying:
"There is nothing in our law which is inconsistent with the cited authorities, and we see no reason why they should not be regarded as conclusive on the question here presented." *Page 131
The strength of the Salo case, supra, may be somewhat weakened by the fact that the statute defines an automobile as "any motor vehicle except a motorcycle"; but the following quotation from the case shows that the ruling would have been the same without the definition:
"It is apparent from the language of the statute last quoted that the term `motor vehicle' includes both automobiles and motorcycles. While every motorcycle is a motor vehicle, it is plain that every motor vehicle is not a motorcycle. The statute makes a clear distinction between an automobile (which manifestly is a `motor-driven car' as used in the policy) and a motorcycle. The word `car' is ordinarily used in speaking of an automobile. It is a common expression describing an automobile. It is a matter of common knowledge that in ordinary conversation a motorcycle is not referred to as a car, but is spoken of as a motorcycle. The difference in the mechanical construction of automobiles and motorcycles does not indicate that a common designation would naturally apply to both. A motorcycle having ordinarily two wheels is a machine more in the nature of a bicycle equipped with motor power. The statutory definitions above referred to make it apparent that there is a distinction between an automobile and a motorcycle. The term `motor-driven car,' as used in the policy, while applicable to an automobile is not appropriate to describe a motorcycle."
It is significant that in the policy covering injury to a pedestrian the coverage is more ample. "If the insured be struck or run over while walking or standing on a public road by a vehicle propelled by steam, cable, electricity, etc.," which of course would include a motorcycle; but when provision is made for a collision, the term is not near so broad.
I think, therefore, that the judgment appealed from should be reversed. *Page 132