Turner v. Fidelity & Casualty Co. I. If assured when he sustained the injury which caused his death was "in or on a private conveyance," then the judgment below was erroneous. If assured In or On. was not "in or on a private conveyance, then the judgment nisi is right and the case must be affirmed. There is no contention that the automobile which struck assured and caused his death was not at the time a private conveyance. So, the question decisive of this case is narrowed to the single inquiry whether, when assured was struck and killed he was, under the terms of the contract of insurance, in or on the automobile in question. We may premise what we shall say by disposing first of the contention that the word "on" as used in the contract of insurance means "at, adjacent to, near to, or alongside of." That the preposition "on" sometimes has one or the other of the latter meanings there can be no doubt. [Webster's Dict.] But in all such cases it will be found that the context itself makes clear the meaning intended to be conveyed, and in the very physical nature of things negatives its ordinary meaning of support from beneath, or superimposition of one thing over another. For while it is both correct and usual to say that St. Louis is on the Mississippi River, or that Jefferson City, or Smith's farm, is on the Missouri Pacific Railroad, we instantly know that what is meant is that these cities, or this farm are near to, alongside of, or lie adjacent to the river, or the railroad. Here the word "on" is used and is to be construed as used (Sec. 8057, R. S. 1909) in its usual and ordinary signification, which is "at or in contact with the surface or upper part of a thing and supported by it." [Webster's Dict.] The word "in" as used in the contract of insurance is patently of narrower signification than is the word "on." For it might well be contended (how correctly we need not rule) that a person is "in" an automobile only when he is within it or enclosed by the space devoted to or set apart for the use of per Turner v. Fidelity & Casualty Co. sons or passengers; while it is clear that he would be "on" such a car if he were merely standing upon the running board thereof. It is, we think, idle to contend that on as used in this policy means "alongside of, near or adjacent to." For if such a meaning is to be attached to the word "on," as it is used in the policy here, then every holder of such a policy who chances to pass by an automobile, or private horse-drawn vehicles, is on such machine, so that if he were fortuitously struck by lightning and killed at the instant he passed such a car, or at the instant such car passed him, he would be entitled to the double indemnity provided by the policy in question. No one would contend for a construction which, when carried to its ultimate analysis, would bring about so ridiculous a result. So, we must cast aside this contention as untenable. II. But it is contended by plaintiff's learned counsel that the clause of the policy in dispute means "while [riding] in or on a private conveyance," and since it means while riding, it also connotes the whole of the trip whereon assured was engaged when killed; as also, all and singular the things necessary to be done in order to make the trip and in order successfully to complete the trip. Therefore, since before the assured could finish the trip or resume it after the breaking of its orderly progression, it was necessary to crank and start the car; he was on the trip, i. e., riding in a private conveyance, even while out on the ground, in the street and engaged in cranking the car. If this contention is sound, and if in such case the beneficiary can recover the double indemnity, she could likewise recover if while similarly riding, or on an uncompleted journey, an accident to the automobile should necessitate the driving of it to a garage for temporary repairs, at the conclusion of which, and touching the costs whereof a dispute should arise between the mechanic and assured wherein without assured's fault, and while merely standing in the garage, he should be murdered. Turner v. Fidelity & Casualty Co. Even if we accept the amendment of plaintiff and without warrant write into the contract of insurance the word "riding," so as to make it read "while riding in or on a private conveyance," neither the above reductio ad absurdum, nor the ruled cases afford any sufficient authority for the position taken by the plaintiff. The whole of the clauses providing for double indemnity in this policy reads thus: "The amounts specified in Articles 1, 2 and 4, and in Section 1 of Article 3 shall be doubled, if the bodily injury is sustained by the assured (1) While in a passenger elevator (excluding elevators in mines); (2) while in or on on a public conveyance (including the platform, steps and running-board thereof) provided by a common carrier for passenger service; (3) while in or on a private conveyance (excluding bicycles, motorcycles, and saddle-horses)." A casual reading of these clauses makes it plain that while they are each broad enough to include the conveyances mentioned while they are running as well as while they are standing still they yet wholly exclude the idea of continuity of journey. They do this by omitting to use either the substantive "passenger" or the participle "riding." All that is necessary is that the assured be when injured or killed "in or on" one of the conveyances mentioned. His reason for being in or on the vehicle cuts no figure. Whether he is riding on the conveyance, or engaged upon a long, a short, or a continuous trip or journey, has no longer any significance in the case. By broadening the liability to include injuries sustained while these conveyances are at rest the former connotation of travelling which was deducible from the language used, has been eliminated. (a) by omitting any reference to riding or travelling, and (b) by the inclusion of other words which logically negative the idea of travelling, or the necessity of being upon a trip or journey when the hurt is sustained. Turner v. Fidelity & Casualty Co. Nor, in our view of the case, and the authorities, would it very greatly aid plaintiff even if we were to write into this clause the word "riding" as contended for. There are numerous cases it is true, which hold (correctly we think) that a person is in or on a street car or steam car, and that he is a passenger on such car when hurt, if so it be that he is hurt while getting on or getting off of such a car. But, such cases and all of them (at least the well-considered ones) continue the protecting rule only so far as to cover the time between the instants at which the assured has actually connected himself with, or disconnected himself from, the vehicle of conveyance. [Tooley v. Assurance Co., 3 Bissell, 399; King v. Insurance Co., 101 Ga. 64; Wilmarth v. Insurance Co., 143 Pac. 780; Creamer v. West End St. Ry. Co., 156 Mass. 320; Wallace v. Employers' Liability Assur. Corp., 26 Ont. L. R. 10; Platt v. Railroad, 2 Hun, 124; Banta v. Continental Casualty Co., 134 Mo. App. 222; Theobald v. Assurance Co., 10 Exch. R. 45; Schmohl v. Travelers' Ins. Co., 189 S. W. 597; Anable v. Fidelity & Cas. Co., 73 N. J. L. 320; Aetna Life Ins. Co. v. Vandecar, 86 Fed. 282; Depue v. Travelers' Ins. Co., 166 Fed. 183; 2 May on Insurance, sec. 524.] The excellent work of Mr. May, above cited, thus states the rule in such cases: "A person may be said to be travelling in a carriage while alighting therefrom, until he has completely disconnected himself and landed." Likewise, as the above cases hold, or as is readily to be deduced from them, a person becomes a passenger in or on a public conveyance as soon as he has connected. himself with that conveyance with the intention of becoming a passenger thereon. [Wilmarth v. Insurance Co., 143 Pac. 780.] The provision in the contract of insurance, held in judgment in the Wilmarth case, supra, read precisely as does the similar provision in the case at bar. It provided a double indemnity in case the assured was killed "while in a passenger elevator (ex Turner v. Fidelity & Casualty Co. cluding elevators in mines)." Assured had got on an elevator to go to the third floor of a certain building, but for some undisclosed reason followed another passenger off at the second floor. In the act of alighting, the platform of the ascending car struck him or brushed against his shoulders as his feet touched the second floor; he fell backwards down the elevator shaft and was killed by the fall. Held, he was still so far connected with the elevator as to be in it within the purview of the provision quoted when the accident occurred which caused his death. The case of Wallace v. Assurance Corp., 26 Ont. L. R. 10, likewise clearly illustrates the distinction. which we draw, and which makes liability vel non to depend on whether the assured at the moment he was injured had or had not disconnected himself from the conveyance in which he had theretofore been a passenger. In the Wallace case the contract of insurance provided for the payment of a double indemnity in the event the assured was injured "while riding as a passenger in or upon a public conveyance. Assured alighted from a street car and was safely on his feet in a public street (precisely as was assured in the case at bar). But instantly thereafter finding himself in iminent danger of being run down by an approaching automobile, he turned and caught at the street car again, not with the intention of becoming a passenger, but in order to escape the sudden danger confronting him from the oncoming automobile. In catching at the street car he fell against it and was hurt. Held, that he could not recover double indemnity, since he had safely disconnected himself from the street car and was no longer riding as a passenger thereon. These two cases clearly illustrate the rule stated and the very plain distinction existing. Some of the cases which we cite rode off upon violations of warranties or conditions against riding in forbidden places, or on account of an unwarranted alighting during an otherwise continuous journey. [Anable v. Fidelity & Cas. |