Allen v. Insurance Co. of North America

• Decision Date: 15 April 1954
• Parties: ALLEN v. INSURANCE CO. OF NORTH AMERICA.
• Court: Pennsylvania Superior Court

104 A.2d 191

175 Pa.Super. 281

ALLEN v. INSURANCE CO. OF NORTH AMERICA.

Superior Court of Pennsylvania.

April 15, 1954

Action on fire policy with extended coverage endorsement, for loss caused by alleged explosion of fuel oil tank. The Municipal Court, County of Philadelphia, as of February Term, 1952, No 357, John Robert Jones, J., tried the case without a jury and found for defendant. Plaintiff appealed from denial of his motion for judgment notwithstanding the finding, and for a new trial. The Superior Court, No. 141, October Term, 1953 Wright, J., held that the trial court's finding that there had not been an explosion, within terms of the policy was not against the weight of the evidence.

Affirmed.

Ralph B. Umsted, Philadelphia, for appellant.

C. L. Cushmore, Jr., Thomas Raeburn White, Jr., White, Williams & Scott, Philadelphia, for appellee.

Before HIRT, Acting P. J., and ROSS, GUNTHER, WRIGHT, WOODSIDE, and ERVIN, JJ.

WRIGHT, Judge.

The Insurance Company of North America issued to Joseph A. Allen two policies of fire insurance, each with an Extended Coverage Endorsement including, inter alia, the peril of ‘ explosion’ . Allen instituted an action in assumpsit on the theory that his property, both real and personal, had been damaged by an explosion. The case was tried by a Judge of the Municipal Court without a jury, and the finding of the trial judge was for the defendant. Plaintiff has appealed from the refusal of his motions for judgment notwithstanding the finding, and for a new trial.

On December 28, 1951, a delivery of fuel oil was being made at appellant's residence. The storage tank was located inside the house in a corner of the basement, and had been in use for thirteen years. It was four and one-half feet high, oval in shape, and had a capacity of 275 gallons. The intake pipe was against the outside wall near the door of the basement, and accessible from the driveway. The delivery man placed the hose from the truck tank in the intake pipe, set the meter, and turned the lever releasing the oil. He testified that, while he was standing near his truck with the motor running, he noticed the curtains on the basement door move, and saw oil seeping out at the bottom of the door. He shut off the hose and went into the basement where he found oil coming from the storage tank and spreading over the floor. Appellant testified that he had looked at the tank that morning and had not noticed any seepage or odor. He had observed from the guage that the tank was less than one quarter full. Appellant further testified that he carefully examined the tank after it was removed. He found a ‘ large gash’ along the seam near the top of the tank ‘ where the pieces of metal had been welded together’ . Appellant subsequently referred to the separation in the tank as an ‘ aperture’ . On cross-examination he called it a ‘ split’ . The separation was eighteen inches long and an inch and a quarter wide at its widest point. The metal at the edges of the separation was perfectly clean with no evidence of rust. The edges themselves were somewhat fluted or undulating. Appellant's wife referred to the edges as wavy or ruffled. Appellee offered no evidence.

Appellant's principal contention is that this court ‘ should enter judgment for the plaintiff notwithstanding the finding’ . In support of this proposition he cites Berkowitz v. Palruba Mfg. Co., 68 Pa.Super. 559, and Hoffman v. Hockfield Brothers, 75 Pa.Super. 595.In those cases we held that a judge could not indulge in an unwarranted disbelief of uncontradicted evidence. In the case at bar, however, the evidence presented did not oblige the trial judge to make a finding for the plaintiff. His action was not based upon a disbelief of plaintiff's evidence, but upon his conclusion that such evidence did not establish an explosion under the terms of the policy.

We agree with appellant that, where a policy is susceptible of more than one construction, it must be liberally construed in favor of the insured and against the insurer. Fink v Lumbermens Mutual Casualty Co., 172 Pa.Super. 533, 93 A.2d 882.However, it is equally well settled that, where there is no ambiguity, the court must construe the language of a policy in accordance with the plain ordinary meaning of its terms. Skelly v. Fidelity and Casualty Co. of New York, 313 Pa. 202, 169 A. 78.And see Ehrlich v. United States Fidelity and Guaranty Co., 356 Pa. 417, 51 A.2d 794.The term ‘ explosion’ as used in a policy of insurance must be taken in its ordinary sense. Tannenbaum v. Allemannia Fire Insurance Co., 127 Pa.Super. 278, 193 A. 305.An ‘ explosion’ is defined by Webster as ‘ a violent bursting or expansion, with noise’ . The distinguishing characteristic of an explosion is the...