O'Leary v. St. Paul Fire & Marine Ins. Co. , 1917 Tex. App. LEXIS 702 ( 1917 )

This was a suit brought by appellant against appellee on a policy of insurance, issued by appellee to appellant. The issues raised by the pleadings are broad enough to support the court's findings of fact, in our opinion, and it is therefore unnecessary to enter into any statement of the contents of the pleadings. The court's findings of fact, filed at request of appellant, read as follows:

"I find that on or about July 8, 1915, plaintiff and defendant entered into a contract, by the terms of which defendant insured an automobile belonging to the plaintiff in the sum of $750, the policy covering damage to the automobile and equipment in excess of $25 by being in collision, during the period insured, with any other automobile vehicle or object, excluding: (1) damages or loss to tires (unless the total damage caused by the collision to the automobile herein described exceeds the sum of $200); (2) damage caused by striking any portion of the roadbed or by striking the rails or ties of the street, steam, or electric railroads; (3) loss or damage while the automobile insured is being operated in any time or speed contest or while being operated by any person under the age of 16 or age limit by fire. The policy also covered damage by fire, and in consideration of a premium of $28.05 insured the plaintiff's automobile for the term of one year from July 8, 1915.

"I find that plaintiff paid for said car the sum of $850.

"I find that on or about August 14, 1915, the car was in a collision and was damaged by said collision in the sum of $50, that the defendant settled with said plaintiff for said damage, but that the car had not been repaired at the time of the accident which forms the basis of this suit

"I find that on or about August 16, 1915, while said car was in the garage of the McDade Automobile Company for the purpose of being repaired, the building in which said automobile company's garage was located collapsed, the second floor of the building falling upon the said automobile and damaging it; that the building was caused to collapse by a severe storm.

"I find that the damage to the automobile sued for in this case was caused by the second floor of the building falling upon said automobile, and that said automobile was damaged in the sum of $300, after deducting $25 as provided by the policy, and taking into consideration the deterioration caused by the use of the car.

"I find that no proofs of loss were furnished by plaintiff, but that defendant denied liability under the policy and has never paid the plaintiff for the damage to the car."

Judgment was entered in favor of defendant in the court below. Appellant, in due season, filed motion for new trial, which was overruled, plaintiff excepting, and giving notice of appeal to this court, and the case is now properly before this court for adjudication.

Appellant's first assignment is as follows:

"Because the court erred in rendering a judgment in favor of the defendant and against the plaintiff, the evidence indisputably showing that the automobile described in plaintiffs petition, and belonging to the plaintiff, was in collision with an object such as is contemplated by the terms of the policy sued upon and was damaged because of such collision in the sum sued for."

The proposition of appellant is as follows:

"The word ``collision' includes within its meaning — when it is used in a policy of insurance on a vehicle, which policy expressly provided that it shall not be considered a collision when the vehicle is damaged by striking any portion of the roadbed, or the rails, or ties of street, steam, or electric railroads — the falling of any object upon the vehicle while the vehicle is stationary."

On the other hand, it is contended that the alleged collision in which the automobile was damaged was not such as was contemplated by the terms of the policy.

We have read the clause of the policy carefully, and have arrived at the conclusion that the contention of appellant is not sound, and that this court would not be justified in holding that the alleged collision, in which the automobile was damaged, was such as was contemplated by the terms of the policy. The car was in a garage. The second floor of the building or garage falling upon the car caused the damage. Surely it cannot be said that it was the intention of the parties, as ascertained from the terms of the policy, that the word "collision" was broad enough to cover such damage as occurred in the instant case, and that appellee would be called upon to pay a loss caused by the falling of a building upon the car while the car was being left in the same.

The case of Harris v. American Casualty Co., 83 N.J. Law, 641, 85 A. 194, 44 L.R.A. (N. S.) 70, Ann.Cas. 1914B, 846, cited by appellant, was a case in which the automobile, while being operated, ran off the bridge, and struck the water and ground beneath. We are of opinion that that case is easily distinguished from the instant case.

The case of Newton Creek Towing Co. v. Ætna Ins. Co., 163 N.Y. 114,57 N.E. 302, was a case in which a boat was lashed to the side of a tugboat and forced through a heavy ice flow, thereby being injured. The court held that, while the injury was undoubtedly caused by collision with the ice, still the injury was not within a contract for insurance against accident caused by collision

We agree with appellant that a policy of insurance will be construed most strongly against the company. However, we do no believe that a forced construction and one clearly not within the intention of either party should be placed upon the language used in the policy. We do not believe, in the case at bar, that there was a "collision" within the ordinary meaning of that term, and we are of opinion that appellant should not be permitted to recover upon said policy in the instant case.

Without going into detail, and without extending this opinion further, it will be sufficient to say that, in our judgment, there is no merit in appellant's assignment. The same is therefore overruled, and, as this court finds no error in the action of the lower court, its judgment is in all things affirmed.