Barber Ex Rel. Barber v. State Farm Mutual Automobile Insurance

121 N.W.2d 147, 254 Iowa 1280, 1963 Iowa Sup. LEXIS 679
CourtSupreme Court of Iowa
DecidedApril 9, 1963
Docket50936
StatusPublished
Cited by2 cases

This text of 121 N.W.2d 147 (Barber Ex Rel. Barber v. State Farm Mutual Automobile Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barber Ex Rel. Barber v. State Farm Mutual Automobile Insurance, 121 N.W.2d 147, 254 Iowa 1280, 1963 Iowa Sup. LEXIS 679 (iowa 1963).

Opinion

Thornton, J.

— Two questions are presented in this appeal. Because of our view of the second it is unnecessary to consider the first.

I. The question is whether plaintiff is excluded from coverage by the following exclusion:

“This insurance does not apply under: * * * (i) coverages C and M, to bodily injury to any person: * * # (3) other than the named insured and a relative while occupying any vehicle not insured under Insuring Agreements I or II; * *

Plaintiff was riding a bicycle at the time of the accident with the insured car. The trial court held, plaintiff “was not occupying such ‘vehicle’ as referred to in said Insuring Agreements I and II. That said policy is an automobile policy and the term ‘vehicle’ used therein refers to automobiles. * * * that a bicycle is not ‘such a vehicle’ as contemplated by the provisions of said policy.”

Defendant contends the coverage does not apply to any *1282 person, “while occupying any vehicle”, not insured or a relative, that the term “vehicle” in its plain ordinary use includes a bicycle, the language of the exclusion is plain and clear.

Plaintiff contends a bicycle is not as contemplated in the exclusion, the exclusion is ambiguous and the construction most favorable to- the insured should be given it.

Does the term “any vehicle” include a bicycle ? And is such term as used reasonably susceptible to more than one meaning % We think not. There is no controversy about “while occupying.” It was stipulated plaintiff was riding a bicycle and the policy defines “occupying” to mean, “in or upon or entering into or alighting from.”

The policy does not define “vehicle.” It is a general or generic word including bicycles as well as all other means of conveyance. See The Oxford English Dictionary and Webster’s New International Dictionary (second edition) (submitted by stipulation in a letter from Professor William Palmer- of Morningside College), also Webster’s Third International Dictionary. A bicycle is defined as a vehicle in both of the Webster’s dictionaries cited.

The word “any” used as an adjective is defined in Webster’s Third International Dictionary as:

“One indifferently out of more than two, one or some, indiscriminately of whatever kind, every, used as a functional word * * * to indicate one selected without restriction or limitation of choice, all, used as a functional word to indicate the maximum or whole of a number or quantity.”

See also Webster’s New International Dictionary (second edition) and Wenthe v. Hospital Service, Incorporated, of Iowa, 251 Iowa 765, 769, 100 N.W.2d 903. It is given the force of “all” or “every”, Iowa-Illinois Gas & Electric Co. v. City of Bettendorf, 241 Iowa 358, 363, 41 N.W.2d 1.

Unless the use of “any vehicle” in the exclusion clause indicates some other meaning than above set out, it includes all vehicles of every kind.

As bearing on the meaning of vehicle, plaintiff cites section 321.1, Code of Iowa, 1962. There bicycle is specifically excluded from the definition, “excepting devices moved by human power.” *1283 The definition is for the purpose of the chapter. The same is true of an Illinois statute, Johnson v. Railway Express Agency, 131 F.2d 1009 (7th Cir. 1942). To the same effect are Gallardo v. Luke, 33 Cal. App.2d 230, 91 P.2d 211, 213, a two-wheeled pushcart, and Jermane v. Forfar, 108 Cal. App.2d 849, 240 P.2d 351, 354, 30 A. L. R.2d 860, a scooter, cited by plaintiff.

Plaintiff does cite two eases which hold the term “vehicle” as used in an exception or exclusion clause in a policy- is ambiguous. An examination of them discloses the difference between them and this case.

In Montlake Drug Co. v. Maryland Casualty Co., 185 Wash. 336, 337, 54 P.2d 1009, the policy provided, “ ‘This policy does not cover any accident caused * * * by any automobile vehicle or by any draught or driving animal or vehicle owned * * *.’ ” The company contended the term “vehicle” included all classes of vehicles. In holding otherwise, the court said, “If so, why use at all in that connection and sentence the words ‘automobile vehicle’ ?” The court held the exception provision was confined to automobile vehicle and vehicles moved by draft or driving animals, and not to a bicycle.

In Bank for Savings & Trusts v. United States Casualty Co., 242 Ala. 161, 162, 163, 5 So.2d 618, 619, the exception provided, “ ‘not cover any accident caused by any driving animal, automobile or any other vehicle * * *.’ ” The court said:

“The clause is not so carefully drawn as to have but one distinct meaning. * * * If he had intended to except ‘all vehicles of any kind whatsoever,’ and had wished to make a clear exact stipulation to that effect, he would have used those or similar words and need not have mentioned automobiles, bicycles, wagons, or any other kind of vehicle. If he had intended to except ‘motor vehicles’ and no other kind of vehicles, such skillful careful draftsman would have used substantially those words, without adding ‘or any other vehicle.’ In either event, there would have been no reasonable ground for controversy. But knowing the principle of ejusdem generis, he uses the term automobile followed by a more-general designation.”

' From these eases plaintiff argues there is an ambiguity, that the principle of ejusdem generis should be invoked as an aid *1284 .to determining what vehicle means. He contends vehicle is ambiguous because the word vehicle is used in subparagraph (2) of the same exclusion. It is, “This insurance does not apply under: * * * (i) coverages C and M, to bodily injury to any person: * * * (2) while occupying or through being struck by any automobile, land motor vehicle or trailer if such vehicle is owned by the named insured * * *.”

Certainly it is there used as a general term and refers back to any automobile, land motor vehicle or trailer. It is directly referred back by the use of the adjective “such” referring to the things previously specified or mentioned. It is not qualified or used as a qualifying word. And it has no relation to its use in subparagraph (3) in question here.

It is next contended “vehicle” is modified by the words which follow it, “while occupying any vehicle not insured under Insuring Agreements I or II.” It was stipulated the policy was not intended to insure bicycles. Plaintiff argues the emphasized portion is a qualifying or descriptive clause and in its use there is the connotation that the vehicle might or could be insured under the policy.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Uptown Food Store, Inc. v. Ginsberg
123 N.W.2d 59 (Supreme Court of Iowa, 1963)
Burcham v. Farmers Insurance Exchange
121 N.W.2d 500 (Supreme Court of Iowa, 1963)

Cite This Page — Counsel Stack

Bluebook (online)
121 N.W.2d 147, 254 Iowa 1280, 1963 Iowa Sup. LEXIS 679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barber-ex-rel-barber-v-state-farm-mutual-automobile-insurance-iowa-1963.