Silverstein v. . Commercial Casualty Ins. Co. , 237 N.Y. 391 ( 1924 )

Andrews, J.

Harry Silverstein was a passenger in a side car attached to a motorcycle. The machine was driven by a friend. It capsized killing Silverstein. His widow brings this action to recover upon an accident insurance policy. If anything is due, the amount is not in dispute. Her complaint was dismissed because it was provided in the policy that it does not cover “ injuries received while riding a motorcycle.”

Where a provision in an insurance policy is ambiguous; where without giving to the language used a forced or unnatural meaning, a construction in favor of the insured may fairly be adopted, to that construction he is entitled. To “ ride ” used as a transitive verb is annexed the idea of control or management. In standard dictionaries, among other definitions are found “ to manage or control while seated on; ” “ to sit on and control so as to be carried, as to ride a horse, to ride a bicycle; ” “ to control and manage.” When Marlborough, rides the whirlwind he is not swept helplessly along. He directs the storm. A baby in a basket attached to the handle bar does not ride the bicycle. A friend who tells you he has been riding a horse conveys the impression that he has done more than to rest passively on its back while the horse was led by another. You say to a child sitting on a horse which his father controls that he is riding. You flatter him by likening his adventure to that of his elders, as when his hand rests on the reins you tell him he is driving. The defendant, itself, seems to hesitate as to the proper meaning of the words. In the answer it quotes the clause and then alleges that the deceased was killed not while riding but “ while riding in or upon a motorcycle.” ■

The insured, therefore, might fairly give this interpretation to the contract. The result in the courts below was erroneous. Especially is it so when in no sense did Silverstein mount the machine. He sat not on but in the car. As no other defense is suggested, the verdict reached by the jury at Trial Term under direction of the judge should be reinstated and judgment granted to the plaintiff thereon, with costs in all courts.

Pound, McLaughlin and Crane, JJ., concur; His cock, Ch. J., Cardozo and Lehman, JJ., dissent.

Judgment accordingly.