Jernigan v. Hanover Fire Ins. Co. of New York ( 1952 )

69 S.E.2d 847 (1952) 235 N.C. 334

JERNIGAN
v.
HANOVER FIRE INS. CO. OF NEW YORK et al.

No. 233.

Supreme Court of North Carolina.

March 26, 1952.

J. Faison Thomson, Goldsboro, and H. T. Ray, Faison, for plaintiff, appellee.

Taylor & Allen and Lindsay C. Warren, Jr., Goldsboro, for defendant, appellant.

ERVIN, Justice.

According to both common usage and statutory definition, a farm tractor is a "motor vehicle designed and used primarily as a farm implement for drawing plows, mowing machines, and other implements of husbandry." G.S. § 20-38(h); State ex rel. Rice v. Louisiana Oil Corp., 174 Miss. 585, 165 So. 423; Davis v. Wright, 194 Okl. 451, 152 P.2d 921.

Common knowledge attests that when the term car is applied to a motor vehicle, it is used as a synonym for automobile. Monroe's Adm'r v. Federal Union Life Ins. Co., 251 Ky. 570, 65 S.W.2d 680; City of Philadelphia v. Philadelphia Transp. Co., 345 Pa. 244, 26 A.2d 909. This being so, the assignment of error based on the denial of the motion for a compulsory nonsuit raises the question whether a farm tractor is an automobile within the purview of a fire insurance policy which does not undertake to define the latter term.

An automobile is the vehicle which one exasperated judge said is "too largely owned more or less conditionally by those not more than six lengths ahead of the wolf, infesting the public streets, contemptuous of the rights of pedestrians, like Jehu driving furiously—a rare combination of luxury, necessity, and waste." United States v. One Automobile, D.C., 237 F. 891, 892. While this judicial description of an automobile may contain at least a modicum of truth, it does not furnish a solution of our present problem.

Inasmuch as there is nothing in the policy indicating that the parties intended the word automobile to have a different meaning, it is to be taken and understood in its ordinary and popular sense. Bailey v. Life Insurance Co., 222 N.C. 716, 24 S.E.2d 614, 166 A.L.R. 826; Stanback v. Winston Mutual Life Insurance Co., 220 N.C. 494, 17 S.E.2d 666.

Justice Oliver Wendell Holmes, Jr., asserted with absolute accuracy that "a word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." Towne v. Eisner, 245 U.S. 418, 38 S. Ct. 158, 159, 62 L. Ed. 372. This observation finds apt illustration in the terminology employed at different times and in varying circumstances to designate the several kinds of self-propelled vehicles, which move about on the surface of the earth otherwise than on fixed rails or tracks.

Common usage has made the words motor vehicle a generic term for all classes of self-propelled vehicles not operating on stationary rails or tracks. As a result, all automobiles are motor vehicles. Bethlehem Motors Corp. v. Flynt, 178 N.C. 399, 100 S.E. 693. But the contrary proposition is not true. The term motor vehicle is much broader than the word automobile, and includes various vehicles which cannot be classified as automobiles. 60 C.J.S., Motor Vehicles, § 1.

When motor vehicles made their initial appearance around the turn of the century, they were employed to transport persons or goods, and were called horseless carriages on account of the service they rendered. Diocese of Trenton v. Toman, 74 N.J.Eq. 702, 70 A. 606. As the functions and numbers of motor vehicles increased, this homely name fell into disuse, and various terms were adopted or invented to designate sundry sorts of motor vehicles. One of these terms was automobile, which has now acquired both a general and a particular meaning in common usage. When it is employed in its general sense, the word automobile embraces all kinds of motor vehicles, except motorcycles, designed for use on highways and streets for the conveyance of either persons or property. Bank for Savings & Trusts v. United States Casualty Co., 242 Ala. 161, 5 So. 2d 618; Life & Casualty Ins. Co. of Tennessee v. Benion, 82 Ga.App. 571, 61 S.E.2d 579; Life & Casualty Ins. Co. of Tennessee v. Roland, 45 Ga.App. 467, 165 S.E. 293; Carter v. State, 12 Ga.App. 430, 78 S.E. 205; Life & Casualty Ins. Co. of Tennessee v. Metcalf, 240 Ky. 628, 42 S.W.2d 909; Baker v. City of Fall River, 187 Mass. 53, 72 N.E. 336; Hoover v. National Casualty Co., 236 Mo. App. 1093, 162 S.W.2d 363; Kellaher v. City of Portland, 57 Or. 575, 110 P. 492, 112 P. 1076; Strycker v. Richardson, 77 Pa.Super. 252; Stanley v. Tomlin, 143 Va. 187, 129 S.E. 379; Wiese v. Polzer, 212 Wis. 337, 248 N.W. 113; 5 Am.Jur., Automobiles, section 3; 60 C.J.S., Motor Vehicles, § 1. When it is used in its particular sense, the term automobile includes such motor vehicles, other than motorcycles, as are intended for use on highways and streets for the carriage of persons only. AmericanLa France Fire Engine Co. v. Riordan, 2 Cir, 6 F.2d 964; Bank for Savings & Trusts v. United States Casualty Co., supra; Neighbors v. Life & Casualty Ins. Co. of Tennessee, 182 Ark. 356, 31 S.W.2d 418; Paetz v. London Guarantee & Accident Co., 228 Mo.App. 564, 71 S.W.2d 826; American Mutual Liability Ins. Co. v. Chaput, 95 N. H. 200, 60 A.2d 118; Blashfield's Cyclopedia of Automobile Law and Practice, Perm.Ed., section 2. See, also, in this connection: Bullard v. Life & Casualty Ins. Co. v. 178 Ga. 673, 173 S.E. 855; Landwehr v. Continental Life Ins. Co., 159 Md. 207, 150 A. 732, 70 A.L.R. 1249; Colyer v. North American Accident Ins. Co., 132 Misc. 701, 230 N.Y.S. 473; Deardorff v. Continental Life Ins. Co., St. Louis, Mo., 301 Pa. 179, 151 A. 814; Moore v. Life & Casualty Ins. Co., 162 Tenn. 682, 40 S.W.2d 403.

Although it is a motor vehicle, a farm tractor can not properly be classified as an automobile in either the general or the particular sense. This is so for the very simple reason that it is neither designed nor suitable for use on highways and streets for the transportation of either persons or property. Tidd v. New York Cent. R. Co., 132 Ohio St. 531, 9 N.E.2d 509. Hence, this action ought to have been involuntarily nonsuited on the ground that the plaintiff's farm tractor was not covered by the fire insurance policy issued by the defendant.

The policy in the instant case is quite different from that involved in Koser v. American Casualty Co. of Reading, 162 Pa. Super. 63, 56 A.2d 301, where the language employed to express the contract ignored the ordinary and popular meaning of the word automobile, and made that word a general term to cover all motor vehicles except those specifically excluded.

While the matter is not germane to the inquiry presented by the appeal, we note, in closing, that the Motor Vehicle Act enlarges the meaning of the term motor vehicles even beyond that accorded it by common usage. G.S. § 20-38(p). Moreover, the Act divides and subdivides the various sorts of motor vehicles into specific classes with technical precision. G.S. § 20-38. It is not likely, however, that the technical definitions employed by the Act will ever find their way into the everyday language of the people.

The judgment rendered in the superior court is hereby reversed.