Plаintiff was insured by the defendant from loss or damage on account of liability for bodily injuries sustained by reason
On June 13, 1918, while the policy was in full fоrce, the plaintiff was driving the automobile when he collided with another, causing injuries to two persons. Actions were brought against him by the injurеd persons, and judgments were obtained by them against him.
The defendant here disclaimed all liability under the policy and refused to defend the said actions, on the ground that at the time of the said accident plaintiff’s automobile was being used for transportation or delivery of goods or merchandise, and was maintained or used for a purpose other than that specified in the policy, to wit, for thе delivery of a buggy, which was attached to the automobile as a trailer.
This action was brought by plaintiff to recover from the defendant the amount of the judgments obtained as aforesaid against him, and also to recover certain expenses incurred in defending the action.
At the close of the trial herein both parties moved for the direction of a verdict. The trial judge found as a fact that at the time of the accident “ the automobile of the plaintiff was being used for the transportation or delivery of goods and merchandise from Buffalo, N. Y., to Holland, N. Y.,” and accordingly gave judgment for defendant.
The evidence shows that plaintiff, as an accommodation to a friend, and without receiving any remuneration therefor, undertook to bring a buggy from Buffalo to Holland. The buggy was evidently аttached to the fear of the automobile. Plaintiff worked in a grocery store, and was not in the business of transporting or delivering merchandise.
The contention of defendant, briefly stated, is that the buggy was merchandise; that when it was attached to the rear of the automobile and was being drawn toward Holland, the automobile was being used for the transportation or delivering of goods or merchandise, within the meaning of that clause as used in the schedule; and hence that the loss by the assured on account of injuries suffered by persоns while the automobile was being so used was hot covered by the policy.
The rule of strict construction against an insurer is elementаry.
If, however, we assume that the buggy did constitute goods or merchandise, within the meaning of the policy, it does not follow that the automobile at the time of the accident was being used for a purpose which excluded it from covеrage. We think the argument of defendant fails to give any effect to the word “ business,” as used in the schedule. If the exception, “ transpоrtation or delivering of goods or merchandise,” is read literally, as defendant would have it read, it would apply equally to the act of the owner in transporting his own goods, and in transporting the goods of another. In other words, it would totally exclude coverage if any goods or merchandise were being transported or delivered. Clearly, such a situation was not contemplated. Likewise, if the аct of the owner here in transporting and delivering a buggy was excluded from coverage, then the act of the owner in carrying any parcel as an accommodation to a friend or neighbor, without remuneration, is equally excluded from coverage. There can be no distinction made under the language used. That also, we think, was not contemplated. In our opinion, it was the business use of the vehicle for transportation or delivery of goods or merchandise which was intended to be excluded. The definite test of a business usе would usually be whether or not a profit was being made, directly or indirectly, by the owner, on the particular occasion. If the owner of a car ordinarily used for private and pleasure purposes, undertakes to transport goods and merchandise for his nеighbor for hire from one place to another, he is pro tanto engaged in the business of transportation. The ordinary man, in reading statement 6 of the schedule, would no doubt understand that such a business use for transportation was excluded. It is doubtful whether the same man would understand that if he carried any package or parcel for his neighbor, he was depriving himself of the protection of his policy. By construing thе exception expressed in the words “ transportation or delivering of goods or merchandise ” as being an exception to the business purposes referred to above, and not as an exception to private and pleasure purposes, we аrrive at a fair and sensible meaning, which is subject to a perfectly definite test of profit or no profit.
Respondent also clаims that under the language of the policy,
Thе judgment appealed from should be reversed on the law and the facts, and judgment directed for the plaintiff, with costs, for the sum of $3,898.78, with interest thereon from May 6, 1921. Finding of fact No. 13 should be disapproved and reversed, and a new finding of fact made to the contrary. Conclusiоns of law as found should be disapproved and new conclusions made in accordance with the facts found.
Hubbs, P. J., Clark, Davis and Taylor, JJ., concur.
Judgment reversed on thе law and facts and judgment directed for the plaintiff, with costs, for the sum of $3,898.78, with interest thereon from May 6, 1921. Finding of fact No. 13 is disapproved and reversed and a new finding of fact made to the contrary. Conclusions of law disapproved and new conclusions made in accordance with the facts found.