*1 2¡ 1 аnd ground on bond that “when death seals the o.f lips of parties one of the .contract law lips seals party.” the other Inasmuch as we question have held that the of com- petency of witnesses properly was not refusal raised the of these instructions was сorrect. There are other matters which urged argued and under points of the brief which pertain ruling to the of the court general special holding demurrers. In view of our appellant waived sufficiency of the of the evidence we give
will no further attention to thеm. We have considered all points properly appeal raised on and the authorities relied appellant find that materially has failed to show error affect- ing the merits of the ease. judgment should be The affirmed. Commissioner so sitting. Campbell, C., recommеnds. foregoing
PER opinion C., adopted CURIAM:—The Boyer, opinion judgment as the of the court. All concur, is affirmed. except Trimble, J., P. absent.
Harvey Burrus, Admr., Appellant, Continental Life Insurance v. Respondent.* (2d)W. 40 S. 493. City Appeals. January 27,
Kansas Court of appellants. & Mosman,-Rogers Burrurs & Bums Buzará *2 Boxley respondent. Fred A. for whereby policy, BAENETT, on an insurance C. This is a suit resulting di- disability against John B. or Lobb was insured death bodily from
rectly, other causes independently, exclusive of all and through means injury solely violent, and accidental external, effected following: by in and sustained the insured the manner “Part One. “ any passengеr (a) By of railroad wrecking the or disablement passenger steamship ear or in or on which the Insured steamboat, or wrecking or traveling fare-paying passenger; or, dis- is as a the railway or any 'public omnibus, car, taxicab, ablement of street operated, at the time' of stage, which is driven or automobile public wrecking plying a driver such disablement licensed traveling pas- fare-paying the is as a hire, and in Insured which; injuries any of senger result in the such so sustained shall and Part specific set forth in this losses wrecking private
“(b) By any autоmobile, of the or disablement motor driven car or horse drawn vehicle which the Insured being accidentally automobile, riding drawn, thrown from such vehicle.” riding While a was in effect assured was on motor- designed body of a to the side which there was attached carriagе passenger supported of a and a third wheel. motorcycle the'particular not constructed evidence indicated was ordinary designed exactly motorcycle. as It was so the same an ordinary operated high speed of it not be at as а rate as could designed motorcycle also so could be attached and was that the motorcycle A who was in business testified that thereto. witness usually designated as a car outfit.” the whole machine “side was (cid:127) motorcycle proper, saddle and Thе assured was injuries which caused his operating when he received the same a court sustained demurrer the evidence. death. The trial not was whether or the assured came only question presented below wrecking bodily injuries a sustained to his death from riding he was or drawn. “motor driven ear” appealed. has Plaintiff
OPINION. motorcycle wherein is held that a Eespondent has cited cases Ins. v. North American Acc. Co. car.” “motor'driven [Salo Co., 197 Casualty & Ins. 557; Life (Mass.), 153 N. E. Anderson v. Ins. Acc. Laporte v. North American 693; 72; 147 S. E. N. C. 1131 Ala. (N. J.), Co. Ins. v. North American Acc. 933; Perry 161 La.
894.] against injury or death In cases the insured each these “by wrecking' private horse drawn caused disablement of driving.” riding vehicle or motor driven car in which insured running motorcycle machine on two In each was a instance Louis- and side car The Massachusetts whеels without attachment. were; Jersey case in 1926, decided the New
ana cases Jersey in 1929. North Carolina North cases The New Carolina Massachusetts case almost approved cases what said ordinarily of the cases out that the word “car” toto. All ordinary parlance automobile, speaking spoken of as a motor- motorcycle ear, not referred to as a but motorcycle, having wheels, is a machine more cycle; £wo bicycle equipped power. point- It is also with motor thei nаture of *3 provided protection the assured rode policy ed out for only if the steamboat, protection on car or but for in or a railroad in horse drawn or a motor driven car. assured rode a vehicle In by motorcycle being supported of some cases it is stated these that the automobile; equilibrium only of an two does not have the wheels, bumpers by motor- supplied that it with a which the is not cyclist may or ride and for these reasons the use of the motor- drive of an is hazardous the use automobile. much more than of present
We for the from further these depart consideration conveyance used cases to whether or not the which was determine held, of first to come impression, this should be as a matter case conveyances provisions policy. within of this In this case the automobiles, cars, are motor mentioned driven conveyance It is motor horse vehicles. certain that drawn conveyances driven. If it is a car it one of the mentioned policy. cannot infer “motor ear” We that the term driven merely designate already Automobiles been used to automobiles. had mentioned, specifically the term “motor driven to hold that conveyances pro- ear” to forms of not intended cover other by policy. from We pelled power motor would to strike* it be which, par- “motor driven a in common cannot hold that car” is term conveyance lance, any specific propelled of motor refers to kind power. might be contended the term car” is ordi- It “motor narily plausibility as name for used another automobilе. With some might commonly that the “ear” is another it be contended word name conveyance. designate the same kind of But using they specifically designates automobiles, the term which usually a term which is not com- are known. This followed any particular monly conveyance, form of but which used to refer designating purpose for the of all forms of con has been framed may veyances properly “cars” and which driven be called Dictionary “car” motor. In Webster’s word International tbe wheels, (a) general, is defined thus: “A In vehicle moved on carriage, cart, wagon, (b) A chariot truck, etc. in this use. Rare solemnity. triumph; splendor, dignity war vehicle Poetic, (c) Specif., auto- particular some as an called, vehicle so locally carriage, (d) mobile, England, hackney a four-wheeled adapted on vehicle to the rails of a railroad. The vehicle used A tramways railroads or Britain are called cars in both Great Street general and the United In term States. the United States car vehicles, passengers freight, for the used on other whether railroads, qualifier being particular added to indicate the use or style; freight as, car, car, platform car, dining parlor car, box smoking basket, car, car, etc.; cage of an or lift. The elevator cage suspended ballast, box or from passengers, a balloon to contain etc.” fairly plain
We think it is primarily vehicle intended transportation persons freight may properly called many car. When a meanings, always word has so different it proper to purpose look to the context and of the instrument whеre- used to determine sense which it was used in that instrument. The fact that certain courts have held that the word “car” means automobile in an referring instrument to horse drawn prove vehicles and motor driven cars does not those courts only would have held that the term “mоtor driven ears” referred to automobiles in an in which instrument “motor car” is driven to, enlargement mentioned as upon, addition therefore designation of automobiles. The cases upon by respondent relied made a of the fact *4 having that a motor only vehiсle up- two wheels will not remain right except moving; ordinary when whereas, the four-wheeled ve- upright hicle remains stationary. while distinction, That if even sound, apply case; could not to the conveyance instant because the subject which the our upright consideration will remain while standing. pointed While have we out that some of the distinctions made the respondent cases cited apply cannot tjy the instant yet case, given by there are other reasons the Massachusetts, courts of Carolina, Louisiana, Jersey Nоrth and New which applicable are way here. We have no to tell what those courts would have if held policies they which specifically the considered had named automobiles conveyances they and if the considered supported been had they upright three wheels so that would remain at all times. We only say given by can that the reasons those courts for their decision applicable so far as to this ease are not sufficient to us convince that the “side car outfit” in which driving the deceased at injury сonveyance the time his was not a policy. mentioned in the Indeed, we are not called to decide whether we would follow if the cited the respondent they cases were directly point. opinion our con- It is that was a ear. It is the “side car outfit” it was motor driven car” ceded that driven. The term “motor commonly designate any not the known means name used to conveyance. It is a whatever it de- /lescriptive term and covers only for reasons scribes. It was not used to refer automobiles the to. already еjusdem generis, it is like unto rule, mentioned. Under the they ve- vehicles; both automobiles and horse drawn because transporta- running hicles on wheels primarily and are intended tion.
Respondent appellant claims that cannot because he did recover not the motor driven ride car. It said who that he rides motor- say place does not ride it. To that one is does not imply wholly partially may that or he enclosed. A man be city. imply This does not the particular city that a walled provision requiring town. We think to the assured be spаce motor driven car means that he must be within the or area occupied by which was person persons intended to be to be con- veyed; experience because common ordinarily teaches that less dangerous occupy part cоnveyance to of any to that was intended occupied If be than otherwise. the assured had while met his death transported automobile, not we would hesitate to hold that if he could recover evidence showed that at the time of his injury clinging spare he cоnveyance, tire on the back of the standing running sitting on the board, the fender or on top, radiator hood for this be space would of the outside occupied by passengers. intended the driver or On the other we occupied hand should hold that he was in car if he thоugh seat, driver’s even been had removed from the particular automobile. In such case he would be within the area primarily occupancy. intended for Respondent has our called attention to the fact
provides protection if injured by the assured is wrecking passenger disablement of railroad car or steamship or steam- boat, traveling in or on which the insured is as a fare-paying pas- senger. It is claimed that use “in the term or on” at this place and the use of the “in” referring word when to a motor driven protected excludes the idea that the insured was if he his met being conveyed by death while a motor driven ear unless he was wholly partially init the sense that he was enclosed. The argument plausibility. is not However, without we think *5 provisions exception an we should read into policy of because refinement, of such obscure this would violate the principle strongly against an instrument should construed most him who prepared company prepares policies it. The insurance its in ad- willing It considers the risks which it is vance. to cover fixes accordingly. policy The if holder, rate he policy all, takes a at been, prepared by insurance exactly previously has as it takes great permit injustice it woold be a company. We think inject fine exceptions policy into the based dis- defendant аpparently of an which turn the use omission criminations require word. .It the insurance unimportant not unreasonable.to liability, unques- company desires, language it so to limit meaning. company If insurance sees fit to insert a tionable injuries policy riding in car out- while side prоvision in excluded, liberty at tricycles shall be it is to do so and fits upheld will be the courts. But it asks too much when stipulation who conveyed by to hold that assured it asks the courts riding in a motor which is motor driven is driven car be- place in the “in” at used the word and in cause one phrase part of the “in on.” another be, judgment should reversed and the cause remanded. The Boyer, C., so recommends. concurs.. Commissioner foregoing opinion by Barnett, U., PER :-AThe is a- CURIAM judgment dopted by is reversed and cause the court. re- JJ., concur; Bland., Trimble, J., manded. absent. Arnold P. Empire Pipe Nifong Appellants, et v. Line Lavina L. al., Texas Respondent. (2d) S. W. City Appeals. April 6, 1931. Kansas Court of