Bell v. Am. Ins. Co.

• Decision Date: 08 March 1921
• Citation: 181 N.W. 733,173 Wis. 533
• Parties: BELL v. AMERICAN INS. CO.
• Court: Wisconsin Supreme Court

173 Wis. 533

181 N.W. 733

BELL

v.AMERICAN INS. CO.

Supreme Court of Wisconsin.

March 8, 1921.

Appeal from Superior Court, Douglas County; Solon L. Perrin, Judge.

Action by J. C. Bell against the American Insurance Company. From judgment for plaintiff, defendant appeals. Reversed, and cause remanded, with directions to enter judgment dismissing the complaint.

Action to recover damages on an insurance policy insuring plaintiff against damage to his automobile by being in accidental collision with any other automobile, vehicle, or object. On the 14th day of September, 1919, plaintiff was driving his automobile down Twenty-First street in the city of Superior. He turned on Logan avenue with the intention of backing out and turning around. He had crossed the cross-walk by six or eight feet, practically stopped his car, the power being in neutral, preparatory to backing out. One side of the car gradually settled into the ground and the car tipped over. Plaintiff seeks to recover the damage resulting to the car by its coming into contact with the ground at the time of the upset. The plaintiff recovered judgment in the lower court, and the defendant brings this appeal.

Tenney, Tenney & Reynolds, of Madison, for appellant.

Grace, Fridley & Crawford, of Superior, for respondent.

OWEN, J. (after stating the facts as above).

The policy insures plaintiff against damage resulting to his automobile “by being in accidental collision during the period insured with any other automobile, vehicle, or object.” Judgment was rendered in the lower court on the theory that the forcible contact of the automobile with the street upon the occasion of the upset constituted a collision within the meaning of the policy provision referred to. The appellant contends that the contact resulting from the upset is not a collision within the meaning of the terms of the policy, and that is the sole question before us.

It was held in Wettengel v. United States “Lloyds,” 157 Wis. 433, 147 N. W. 360, Ann. Cas. 1915A, 626, that the language of this policy provision did not cover damages resulting to an automobile by its running off the main road and down a bank into a river. In that case the doctrine ejusdem generis was applied to the words “automobile, vehicle, or object,” and it was held that to entitle plaintiff to recover the collision must have occurred with another automobile, vehicle, or some similar object. If the doctrine of that case is to be followed, the judgment must be for the defendant. It is urged by the respondent that the application of the doctrine ejusdem generis was unnecessary to the conclusion there reached, and that it was inadvertently applied and has no proper application to the words as used in the policy before us. It is pointed out that the doctrine of ejusdem generis does not apply when the specific words embrace all objects of their class, so that the general words must bear a different meaning from the specific words or be meaningless; that an automobile is a vehicle, and the term “vehicle” includes everything in which persons or things can be carried or transported; hence the words “automobile” and “vehicle” embrace all objects of their class, and the word “object” means a different kind of an object or it means nothing.

[1] By the rule of construction known as ejusdem generis general words following particular words are limited to other species of the same genus. “The particular words are presumed to describe certain species, and the general words to be used for the purpose of including other species of the same genus. The rule is based on the obvious reason that, if the Legislature had intended the general words to be used in their unrestricted sense, they would have made no mention of the particular classes.” 36 Cyc. 1120. It has been held that the rule does not apply where the specific words embrace all objects of their class so that the general words must bear a different meaning from the specific words or be meaningless. United States Cement Co. v. Cooper, 172 Ind. 599, 88 N. E. 69. We think the reason supporting the rule also dictates the exception, and that the exception applies to the words of this policy provision. Unless the word “object” as here used be construed as including an object of a different class, it is meaningless, as the term “vehicle,” it seems to us, includes every species within the genus. We are disposed to construe this provision as sufficiently broad to include a collision with objects other than automobiles or vehicles, and withdraw the contrary intimation made in Wettengel v. United States “Lloyds,” supra. This requires us to determine whether the forcible contact of the automobile with the ground, as a result of the upset, constitutes a collision.

With the definitions of lexicographers as a basis, it is easy to demonstrate that the incident resulting in damage to plaintiff's automobile constituted a collision. Thus:

“A collision is the ‘meeting and mutual striking or dashing of two or more moving bodies or of a moving body with a stationary one.’ Century Dictionary. ‘Object’ is defined to be ‘that which is put, or which may be regarded as put, in the way of some of the senses, something visible or tangible.’ Webster's Dictionary. An automobile is an object. Upon the overturning of an automobile its forcible contact with the earth constitutes a ‘mutual striking or dashing of a moving body with a stationary one.’ Hence the forcible contact of the...