American Automobile Ins. Co. v. Baker

• Decision Date: 29 March 1928
• Docket Number: (No. 630.)
• Citation: 5 S.W.2d 252
• Parties: AMERICAN AUTOMOBILE INS. CO. v. BAKER et al.
• Court: Texas Court of Appeals

5 S.W.2d 252

AMERICAN AUTOMOBILE INS. CO. v. BAKER et al.

(No. 630.)

Court of Civil Appeals of Texas. Waco.

March 29, 1928.

Appeal from Dallas County Court at Law; Paine L. Bush, Judge.

Suit by Mrs. Fenton J. Baker and husband against the American Automobile Insurance Company. Judgment for plaintiffs, and defendant appeals. Reversed and rendered.

Thompson & Barwise, of Fort Worth, for appellant.

Leachman & Gardere, of Dallas, for appellees.

STANFORD, J.

This suit was filed by appellees, Mrs. Baker and husband, against appellant, to recover damages to an automobile in the sum of $236.50. Liability for said amount was based upon a certain written contract of insurance issued by appellant to appellee Mrs. Baker covering her automobile, which policy provided in terms that the American Automobile Insurance Company insured plaintiff, Mrs. F. J. Baker, against actual loss or damage to her automobile if caused, while the policy was in force, "by accidental collision with any other automobile, vehicle, or object." The case was tried before the court upon an agreed statement, and judgment rendered for appellee Mrs. Baker. Appellant has duly appealed and presents the record here for review.

By several assignments and propositions thereunder, and upon various grounds, appellant contends the court erred in admitting in evidence the following letter:

                                          "October 22, 1925
                

"Mr. Fenton J. Baker, Baker Hotel, Dallas, Texas — Dear Fenton: Inclosed is American automobile policy No. 1029393, renewing the full coverage insurance on Louise's car for next

                year.                    J. M. Thompson."
                

By the terms of the policy in this case, the appellant insured appellee's car against loss or damage by: (a) Fire arising from any cause whatever, lightning, perils of transportation, etc.; (b) theft, robbery or pilferage, etc.; and (c) accidental collision with any other automobile, vehicle, or object, etc. The controversy in the case arises over the meaning of clause (c) above, and the letter above written by the agent accompanying the delivery of the policy was introduced in evidence over appellant's objection, timely made, and especially the phrase, "renewing the full coverage on Louise's car," to show that appellant construed said clause in effect to cover any kind of an injury to said car. But we think the term "full coverage," as used in said letter, was intended to mean only that said policy covered fire, perils of transportation, theft, and pilferage, and collision with another automobile, vehicle or object; in other words, the policy covered all kinds of insurance usually embraced under the abovementioned heads, and in no way tended to broaden or construe any one of the written clauses of the policy sued upon. Merchants' & Manufacturers' Inter-Insurance Alliance v. Hansen (Tex. Civ. App.) 258 S. W. 257. We think said letter was immaterial and appellant's objection to its introduction should have been sustained. However, as we view the case, this error was harmless.

Under several propositions appellant contends that damage to an automobile caused by the falling of hail on, in, and against the same is not covered by a written policy of insurance, insuring the owner against actual loss or damage to the automobile if caused, according to the terms of the policy, by "accidental collision with any other automobile, vehicle, or object." The agreed statement of facts on which the case was tried showed that Mrs. Baker was the owner of the car at the time it was injured, and that at said time it was covered by a written contract of insurance issued by appellant, which policy provided, in terms, that appellant insured Mrs. Baker "against accidental loss or damage to said car, if caused while the policy was in force, by accidental collision with any other automobile, vehicle, or object"; that said car, while parked on a street in Dallas, was damaged by hail falling on, in, and against same, to the extent of $236.50. The question here involved is one of law and is simple and clear-cut. Was the damage to the car, caused by hail falling on it, caused by accidental collision with any other automobile, vehicle, or object? Clearly, such damage was not caused by accidental collision with any other automobile, nor with a vehicle. Was such damage caused by accidental collision with an object, within the meaning of said clause? This same clause is frequently used in policies of automobile insurance, and has been so used for many years, but no case has been cited, and we have been unable to find any reported from any court, where it was contended that the falling of hail on a car constituted a collision of said car with an object. Appellee cites and relies upon the case of Wood v. Southern Casualty Co., 270 S. W. 1055, decided by the Beaumont Court of Civil Appeals. In that case the court said:

"We think when the car ran into the rut and came in contact with the banks of same, causing the driver to lose control of the car, and it skidded into an adjacent ditch and turned over, that under the great weight of authority it must be held that the rut was an `object' and that the car collided with same, as well as collided with the sides and bottom of the ditch into which it ran by reason of the `collision' with the rut."

In the above case the same clause was involved as is involved here. We can understand how a rut, ditch, embankment, or other bad place in a road might be construed as an object within the meaning of said clause. However, there are decisions from other jurisdictions holding otherwise on similar facts. London Guaranty & Accident Co. v. Sowards, 2 D. L. R. page 495; Ploe v. International Indemnity Co., 128 Wash. 480, 223 P. 327, 35 A. L. R. 999. A policy containing the same clause involved here came before the Beaumont Court of Civil Appeals, in the case of O'Leary v. St. Paul Fire & Marine Ins. Co., 196 S. W. 575, in which case the car was in a garage and the second floor of the garage fell upon and damaged the car. In this case, the court said:

"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...