Brown v. FIDELITY & CASUALTY COMPANY OF NY

86 S.E.2d 433 (1955)

241 N.C. 666

Robert BROWN, by and through his Next Friend, Paul Brown, v. The FIDELITY & CASUALTY COMPANY OF NEW YORK.

No. 234.

Supreme Court of North Carolina.

March 23, 1955.

*436 W. H. McElwee, Jr., Trivette, Holshouser & Mitchell, No. Wilkesboro, for plaintiff appellant.

Patrick & Harper, Hickory, for defendant appellee.

WINBORNE, Justice.

The stipulations on which the ruling of the trial court was made to rest are manifestly insufficient to make a case for the jury.

Admittedly the main point at issue is whether or not the tractor described in the stipulations is covered by the insurance policy on which the action is based.

The automobile, described in the policy, is a "1948 Ford ½ T. Pickup Truck", and the purpose for which it is to be used is "Commercial". And the term "commercial" is defined "as use principally in the business occupation of the named insured as stated in declaration 1, including occasional use for personal, pleasure, family, and other business purposes." The occupation of the named insured is "Farmer & Garage Owner".

Moreover, the policy provides in paragraph V as to "Use of other automobiles". "If the named insured is an individual who owns the automobile classified as `pleasure and business' * * * such insurance as is afforded by the policy for bodily injury liability, * * * applies with respect to any other automobile subject to the following provisions:

"(a) With respect to the insurance for bodily injury liability * * * the unqualified word `insured' includes (1) such named insured (2) * * * or (3) any other person * * * responsible for the use by such named insured * * * of an automobile not owned by or hired by such other person * * *."

Also it may be noted that the vehicle is mentioned in the policy as "Automobile", and not as "Motor vehicle".

Furthermore the policy is endorsed on its face "N. C. Assigned Risk Plan". That plan is provided for in the Motor Vehicle Safety and Responsibility Act, 1947 Session Laws of N. C., Chapter 1006, codified as Art. 9 of Chapter 20 of General Statutes.

"Where a statute is applicable to a policy of insurance, the provisions of the *437 statute enter into and form a part of the policy to the same extent as if they were actually written in it", so wrote Ervin, J., in the recent case of Howell v. Travelers Indemnity Co., 237 N.C. 227, 74 S.E.2d 610, 612.

Turning now to the Motor Vehicle Safety and Responsibility Act, G.S. § 20-226, in effect on 29 June, 1951, the date on which plaintiff sustained the injury here involved, it is seen that the General Assembly declared that "unless a different meaning is clearly required by the context", the term "`motor vehicle' means every vehicle which is self-propelled, or designed for self-propulsion, and every vehicle drawn, or designed to be drawn, by a motor vehicle, and includes every device in, upon or by which any person or property is or can be transported or drawn upon a highway, except devices moved by human or animal power, and devices used exclusively upon stationary rails or tracks, and vehicles used in this State but not required to be licensed by the State." (Italics ours.)

And now adverting to Part 3 of Chapter 20 of the General Statutes, entitled "Registration and Certificates of Titles of Motor Vehicles", likewise effective on 29 June, 1951, it is seen in G.S. § 20-51 that there shall be exempt from the requirement of registration and certificate of title, among others, "(f) Farm tractors equipped with rubber tires and trailers or semi-trailers when attached thereto and when used by a farmer, his tenant, agent, or employee in transporting his own farm implements, farm supplies, or farm products from place to place on the same farm, from one farm to another, from farm to market, or from market to farm. This exemption shall extend also to any tractor and trailer or semitrailer while on any trip within a radius of ten miles from the point of loading * * *."

Indeed in Article 2 of Chapter 20 of General Statutes, entitled "Uniform Drivers' License Act" it is provided in G.S. § 20-6 that unless another meaning is clearly apparent from the language or context or unless such construction is inconsistent with the manifest intention of the legislature, terms used in this article shall be construed as follows: "`Motor vehicle' shall mean any rubber-tired vehicle propelled or drawn by any power other than muscular, except aircraft, road rollers, street sprinklers, ambulances owned by municipalities, baggage trucks, and tractors used about railroad stations and yards, agricultural tractors, industrial tractors used in and around warehouses and yards, and such vehicles as run only upon rails or tracks." (Emphasis ours.)

And in G.S. § 20-7 it is declared, among other things, that "except as otherwise provided in § 20-8, no person shall operate a motor vehicle over any highway in this State unless such person has first been licensed as an operator or a chauffeur by the Department under the provisions of this article."

And in G.S. § 20-8 there is exempted from license "(b) Any person while driving or operating any road machine, farm tractor, or implement of husbandry temporarily operated or moved on a highway."

Therefore it is manifest from a reading of the provisions of the Motor Vehicle Act, Chapter 20 of the General Statutes, that farm tractors are not to be considered motor vehicles within the provisions of the Uniform Drivers' License Act, the statute relating to the registration and certificate of titles of motor vehicles, or in the Motor Vehicles Safety and Responsibility Act. Hence the farm tractor involved in the case in hand is not covered by the policy of insurance on which this action is founded. Thus whether or not the stipulation of the parties on which decisions below rests declares the ownership of the farm tractor, is immaterial.

The judgment of nonsuit from which this appeal is taken is

Affirmed.

BARNHILL, C. J., took no part in the consideration and decision of this case.