Seaford v. Nationwide Mutual Insurance Company , 253 N.C. 719 ( 1961 )

117 S.E.2d 733 (1961) 253 N.C. 719

William W. SEAFORD
v.
NATIONWIDE MUTUAL INSURANCE COMPANY.

No. 381.

Supreme Court of North Carolina.

January 20, 1961.

Peter W. Hairston, Mocksville, for plaintiff appellant.

Walser & Brinkley, Lexington, for defendant appellee.

WINBORNE, Chief Justice.

Both plaintiff and defendant agree that the questions presented on this appeal are these:

"1. Is a tractor-trailer unit not ``an automobile' within the meaning of the so-called non-owned coverage provisions of the Family Comprehensive Liability Policy?

"2. Was the plaintiff a textile worker who had been employed to operate a tractor-trailer unit for the one trip only, using this equipment ``in any business or occupation' of the plaintiff within the meaning of the policy?

"3. Did the non-waiver agreement entered into by the plaintiff apply under the circumstances herein to the action taken by the defendant company in the filing of a notice of liability coverage designated as SR-21 with the North Carolina Department of Motor Vehicles?"

The word "automobile" is derived from the Greek word "autos" meaning self, and the Latin word "mobilis" meaning freely movable, changing its own place or able to effect a change of its own place. The word has been defined by the North Carolina Supreme Court in Jernigan v. Hanover Fire Ins. Co., 235 N.C. 334, 69 S.E.2d 847, 848. In that case Justice Ervin, writing for the Court, said: "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 Ins. Co., 222 N.C. 716, 24 S.E.2d 614, 166 A.L.R. 826; Stanback v. Winston Mut. Life Ins. Co., 220 N.C. 494, 17 S.E.2d 666 * * * When it is employed in its general sense, the word automobile embraces all kinds of motor vehicles, except motorcycles, designed for use on the highways and streets for the conveyance of either persons or property * * * When it is used in its particular sense, the term automobile includes such motor vehicles, other than motorcycles, as are intended for use on the highways and streets for the carriage of persons only * * *."

The Court held in the Jernigan case, supra, that a farm tractor cannot be properly classified as an automobile in either the general or the particular sense since a tractor is "* * * neither designed nor suitable for use on highways and streets for the transportation of either persons or property." Therefore, in the present case a different question is presented, namely, whether a tractor-trailer unit is an "automobile" as used in the insurance policy in question.

There have been numerous cases in other jurisdictions holding that a truck is an "automobile" within the meaning of provisions of an automobile insurance policy. See Life & Casualty Ins. Co. of Tenn. v. Metcalf, 240 Ky. 628, 42 S.W.2d 909; Kellaher v. City of Portland, 57 Ore. 575, 110 P. 492, 112 P. 1076; Continental Casualty Co. v. Buckeye Union Cas. Co., Ohio Com.Pl.1957, 143 N.E.2d 169; Life & Cas. Ins. Co. of Tenn. v. Roland, 45 Ga.App. 467, 165 S.E. 293; Lonsdale v. Union Ins. Co., 167 Neb. 56, 91 N.W.2d 245.

The absence from the policy in question of express unequivocal language expressly excluding a tractor-trailer unit by appropriate words saving itself from liability to the insured where an accident occurs while riding in an "owned automobile or any non-owned automobile" tends to show that by the use of the word "automobile" the policy did not thereby exclude an "owned" or "any non-owned" tractor-trailer unit. It is apparent that the word "automobile" was selected and used in the policy in its common, general and popular sense.

In substance, the defendant company contends that whatever may be the meaning of the word "automobile" when contained in a policy which does not contain a definition of that term (here there is no such definition), that such definition ex vi terminii excludes a tractor-trailer unit.

It then comes to this: We must forfeit entirely the "use of the owned automobile or any non-owned automobile" provision or conclude that the use of the word "automobile" therein must be given its ordinary and commonly accepted meaning. When so considered the conclusion is that a tractor-trailer unit is an "automobile" within the meaning of the policy herein. Furthermore, it is an established principle of law in this State that when an insurance policy is reasonably susceptible of more than one interpretation, or if the language is ambiguous, the construction more favorable to the assured will be adopted. See Johnston v. New Amsterdam Cas. Co., 200 N.C. 763, 158 S.E. 473; Conyard v. Life & C. Ins. Co., 204 N.C. 506, 168 S.E. 835; Stanback v. Winston Mut. Life Ins. Co., supra; Bailey v. Life Ins. Co., supra.

In the Johnston case the Court in opinion by Adams, J., expressed the principle in this manner: "We recognize the established principles that a policy of insurance, if the language is ambiguous or susceptible of more than one interpretation, should be given a construction favorable to the assured * * *." [200 N.C. 763, 158 S.E. 475.]

And in the Conyard case it is said: "The rule of construction is that when an insurance policy is reasonably susceptible of two interpretations, the one more favorable to the assured will be adopted. ``The policy having been prepared by the insurers, it should be construed most strongly against them.'" [200 N.C. 763, 168 S.E. 836.]

For reasons stated, a tractor-trailer unit is an "automobile" within the meaning of the provisions of the Family Comprehensive Liability Policy under consideration.

However, even though the tractor-trailer unit in question does come within the "automobile" provisions of the policy, the plaintiff must still hurdle the clause therein providing that the policy does not apply "* * * (f) to a non-owned automobile while used (1) in the automobile business by the insured, or (2) in any other business or occupation of the insured except a private passenger automobile operated or occupied by the Named Insured or by his private chauffeur or domestic servant, or trailer used therewith." The term "business or occupation" is not restrictive in its meaning nor made so by any provisions of the policy.

The defendant company contends that at the time of the accident the business and occupation of the plaintiff was that of operating a tractor-trailer unit for Paul Leo Bennett, the employer. But the plaintiff counters and contends that since he was employed to operate the tractor-trailer unit for the one trip only that it is not in his "business or occupation" within the meaning of the policy. In Allstate Ins. Co. v. Hoffman, 21 Ill.App.2d 314, 158 N.E.2d 428, 430, where the Court there had to pass on the identical question here presented, it is said: "It is not uncommon for an insured to have a business in addition to his regular and customary occupation which he may pursue primarily or even wholly for purposes other than pecuniary gain; but such collateral business would nonetheless constitute a business or an occupation while so pursued. Since the policy contains no restrictive provisions as to the business or profession of the insured, it would seem that coverage or noncoverage is to be determined by the terms and provisions of the policy and not by reference to the particular business or occupation of the insured described in the policy." Also to the same effect are Dickey v. General Accident Fire & Life Assur. Corp., 328 Pa. 541, 195 A. 875; Voelker v. Indemnity Co., D.C.N.D.Ill., 172 F. Supp. 306, affirmed 7 Cir., 260 F.2d 275.

The conclusion is that the insurance company's position is sound and supported by authority, and even though the insured had other employment upon which he depended primarily for his livelihood, the tractor-trailer was being used in "business or occupation" while the plaintiff was on the trip in the employ of Paul Leo Bennett.

Having so concluded, the next question is whether or not the filing of the SR-21 form by the insurance company, as required by G.S. § 20-279.19, waives its right to deny coverage under the terms of the policy. In other words, does the filing of an SR-21 form with the Department of Motor Vehicles prevent the defendant insurance company from subsequently raising the defense that the policy in question did not cover the plaintiff in the Maryland accident?

The purpose of the SR-21 form, as required by G.S. § 20-279.19, seems to be a means of protecting one's driving privilege by proving insurance in the minimum amount required by this State, and was not intended to be a contract. The required filing of the SR-21 form does not show an intent on the part of the Legislature that once the insurer files the form showing that the policy is in effect, such act affects the contractual rights of the parties, or precludes the insurance company from thereafter seeking to deny its liability under the policy.

The plaintiff contends that the filing of the SR-21 form should have the effect of estopping the insurer from later denying coverage under the policy, and cites a Wisconsin case, Behringer v. State Farm Mutual Auto Ins. Co., 275 Wis. 586, 82 N.W.2d 915, in support of his contention. As a result of the holding in the Behringer case, supra, the laws of Wisconsin were amended so as to change the holding of that case. Indeed, since the law has been changed in Wisconsin the Supreme Court of that State has allowed the insurance company to raise a defense subsequent to the filing of the SR-21 form. Kurz v. Collins, 6 Wis. 2d 538, 95 N.W.2d 365.

The better rule seems to be that by the mere filing of an SR-21 form as required by the law of this State, the insurer is not estopped to later deny coverage under the policy. Hoosier Cas. Co. of Indianapolis, Ind. v. Fox, D.C., 102 F. Supp. 214; State Farm Mut. Auto. Ins. Co. v. West, D.C., 149 F. Supp. 289.

Therefore, for reasons stated, the lower court should be and it is

Affirmed.