Gaumnitz v. Indemnity Insurance of North America

[136]

THOMPSON, J.

The defendant has appealed from, a judgment of $1607.92 which was rendered pursuant to the verdict of a jury returned in a suit on an insurance policy on account of the death of plaintiff’s husband as the result of an automobile casualty. The indemnity company claims it is specifically exempted from liability by the terms of the policy for the reason that the insured was killed while riding in a truck. It is also asserted the court erred in admitting expert testimony as to the classification of the machine, and that plaintiff’s attorney was guilty of prejudicial misconduct in the course of his argument to the jury.

The plaintiff was the wife of E. B. Whittaker who was insured by the defendant in the sum of $1500 against injury or death “(A) While operating, riding in, demonstrating, adjusting or cranking ah automobile.” He was the owner of a light Ford pickup machine, in which he was riding on August 10, 1932, when he was killed as the result of a collision. The policy, which was then in full force, contains the following exemption clause, “This policy shall not cover injuries (fatal or otherwise) or any loss or disablement sustained: ... (6) while operating, riding in or on, demonstrating, adjusting or cranking any . . . automobile

truck,

...”

Demand for the payment of the policy was duly made and refused. A suit on the policy was then commenced. It was tried with a jury which returned a verdict for the amount of the policy and interest thereon in favor of the plaintiff. A motion for a directed verdict was denied. Judgment was rendered pursuant to the verdict. From that judgment the defendant has appealed.

The record contains competent, satisfactory evidence that the machine in which Whittaker was riding at the time of his death was a light Ford pickup automobile, and that it was not an “automobile truck” as that term is' used in the exclusion clause of the policy. Several photographs of the machine were admitted in evidence without objection. A prospectus containing pictures of the various types of automobiles which are manufactured by the Henry Ford industry was also received in evidence without objection. The illustration contained in the pamphlet, corresponding with the machine which is involved in this case,