Brown v. Union Indemnity Co.

• Decision Date: 06 October 1925
• Docket Number: 27243
• Citation: 105 So. 918,159 La. 641
• Court: Louisiana Supreme Court
• Parties: BROWN v. UNION INDEMNITY CO. In re UNION INDEMNITY CO

105 So. 918

159 La. 641

BROWN v. UNION INDEMNITY CO.

In re UNION INDEMNITY CO

No. 27243

Supreme Court of Louisiana

October 6, 1925

Rehearing Denied November 2, 1925

Judgment of Court of Appeal annulled, and judgment of district court reinstated and affirmed.

Barnette & Roberts, of Shreveport, for applicant.

C. H Lyons, of Shreveport, for respondent.

OPINION

ROGERS, J.

The question to be answered in this case is whether recovery can be had under a stipulation in an insurance policy guaranteeing the insured against loss by reason of damage to or destruction of, his automobile, "caused solely by accidental collision with another object," where the insured's automobile was damaged by tipping over and coming into violent contact with the surface of the road.

The scene of the accident was on the Greenwood public road near the city of Shreveport. Plaintiff's automobile was being driven in a westerly direction. Another automobile was immediately in front of petitioner's car, traveling in the same direction and on the same side of the road. Both machines were proceeding at the rate of 25 miles an hour. The first car slowed down, and the driver of plaintiff's automobile turned towards its left and speeded up in an attempt to pass said car. When plaintiff's car was about to pass the other car, the driver of this car also speeded up and turned to the left for the purpose of avoiding another automobile which was rapidly approaching from the opposite direction. The driver of this car, in attempting to pass the other cars, turned to the left side of the road, which was the wrong side for it to be on, going in the direction of the city of Shreveport. In order not to collide with the second named car, the plaintiff's driver turned his car sharply to the right of the road, avoiding the other cars. In the execution of this manoeuvre, plaintiff's automobile tipped over and came into violent contact with the surface of the road, breaking the body of the car, and otherwise damaging it, requiring the expenditure on plaintiff's part of $ 1,661.15 in order to place his machine in the same condition in which it was prior to the accident.

Plaintiff brought this suit to recover said amount from defendant under a policy which it had issued insuring plaintiff's automobile against loss for damage done to it solely by accidental collision with another object.

In the district court, defendant filed an exception of no cause of action, which was sustained, and plaintiff's suit was dismissed at his cost. On appeal by plaintiff, this judgment was reversed by the Court of Appeal for the Second Circuit, and the case was remanded to the district court for further proceedings. Defendant then applied for a writ of certiorari or review, which application was granted, and the case is now before us.

The respondent, William E. Brown, filed a motion in this court to recall the writ of review, on the ground that the application therefor had been made and granted as a matter of right, upon the allegation that the decision of the Court of Appeal is in conflict with the jurisprudence of the Supreme Court, which allegation he contends is incorrect, since the question presented has not heretofore been before this court.

Respondent's motion cannot be allowed. A reference to the application of relator shows that it was based upon the declaration that the judgment of the Court of Appeal is contrary to the stipulations of the policy, as well as being contrary to the law and the jurisprudence of this state; and the case was ordered up under the general authority conferred upon this court by the Constitution, art. 7, § 11.

So far as we have been able to ascertain, the question presented has not been heretofore before this court. It has been, however, the subject of adjudications by other courts of last resort. In the opinions of the Court of Appeal, one on the original hearing and the other on the rehearing, some of these cases, and many other cases involving questions of similar import, have been referred to and commented upon.

In the original opinion of the Court of Appeal, the cases of Moblad v. Western Indemnity Co., 53 Cal.App. 683, 200 P. 750, and Bell v. American Insurance Co., 173 Wis. 533, 181 N.W. 733, 14 A. L. R. 179, were cited as deciding the question in the negative, and the cases of Great American Mutual Indemnity Co. v. Jones, 111 Ohio St. 84, 144 N.E. 596, 35 A. L. R. 1023, and Fireman's Insurance Co. v. Savery (Ind. App.) 88 Ind.App. 296, 143 N.E. 612, were referred to as answering the question in the affirmative.

The author of the opinion also cited the following cases as being similar to the instant one, and as holding that the insured was protected, viz.: Freiberger v. Globe Indemnity Co., 205 A.D. 116, 199 N.Y.S. 310; Young v. New Jersey Ins. Co. (D. C.) 284 F. 492; Interstate Casualty Co. v. Stewart, 208 Ala. 377, 94 So. 345, 26 A. L. R. 428; Universal Service Co. v. American Ins. Co., 213 Mich. 523, 181 N.W. 1007, 14 A. L. R. 183; Rouse v. St. Paul, etc., Co., 203 Mo.App. 603, 219 S.W. 688; Lepman v. Employers, etc., Corp., 170 Ill.App. 379; Harris v. American Casualty Co., 83 N. J. Law, 641, 85 A. 194, 44 L. R. A. (N. S.) 70, Ann. Cas. 1914B, 846; Hardenburgh v. Employers Casualty Co., 78 Misc. 105, 138 N.Y.S. 662.

The following cases were then referred to, in the opinion, as maintaining the reverse of the proposition, viz.: Continental Casualty Co. v. Paul, 209 Ala. 166, 95 So. 814, 30 A. L. R. 802; Southern Casualty Co. v. Johnson, 24 Ariz. 221, 207 P. 987; Moblad v. Western Indemnity Co., 53 Cal.App. 683, 200 P. 750; Fox v. Interstate Exchange, 182 Wis. 28, 195 N.W. 842; Alexander v. Ins. Co., Supreme Court of Hawaii; Royal Hawaiian Sales Co. v. Ins. Co., Supreme Court of Hawaii; Wettengel v. U.S. Lloyds, 157 Wis. 433, 147 N.W. 360, Ann. Cas. 1915A, 626; Gibson v. Georgia Life Ins. Co., 17 Ga.App. 43, 86 S.E. 335; 14 A. L. R. 191.

And in view of these conflicting authorities, under the settled doctrine that an insurance policy which contains language reasonably susceptible to different interpretations will be given the construction most favorable to the assured, the court concluded that plaintiff's petition set forth a cause of action, and accordingly overruled the exception and remanded the case.

The Court of Appeal, in its opinion on rehearing, confirmed the views which it had previously expressed on the original hearing. The author of the opinion on rehearing exhaustively reviewed the jurisprudence on the subject. He referred to and commented upon all the cases listed in the original opinion, with the exception of the two cases decided by the Hawaiian Supreme Court, which were not accessible. In addition he cited and discussed the following cases as having more or less bearing upon the issue involved, viz.: Wetherill v. Williamsburg City Fire Ins. Co., 60 Pa. S.Ct. 37, noted in 14 A. L. R. 189; Polstein v. Pacific Fire Ins. Co., 122 Misc. 194, 203 N.Y.S. 362; Hanvey v. Georgia Life Ins. Co., 141 Ga. 389, 81 S.E. 206; Hoosier Mutual Auto Ins. Co. v. Lanam, 79 Ind.App. 629, 137 N.E. 626; Stuht v. U.S. Fidelity & Guaranty Co., 89 Wash. 93, 154 P. 137; Power Motor Car Co. v. U.S. Fidelity & Guaranty Co., 69Mont. 563, 223 P. 112, 35 A. L. R. 1028.

Among the cited cases the following are valueless in the consideration of the question presented, because of the exclusion clause contained in the policy, viz.: Stuht v. U.S. Fidelity & Guaranty Co. and Harris v. American Casualty Co., in which upsets were specially excluded; Rouse v. St. Paul F. & M. Ins. Co., Hanvey v. Georgia Life Ins. Co., Hoosier Mutual Automobile Co. v. Lanam, Gibson v. Georgia Life Ins. Co., and Hardenburg v. Employers' Liability Ins. Corp. (which was reversed in 80 Misc. 522, 141 N.Y.S. 502) in which injuries caused by striking any portion of the roadbed, etc., were excluded.

With the exception of the cases to be hereinafter specially mentioned and reviewed, the other decisions referred to in the opinions of the Court of Appeal are not apt in the instant case. It is true, some of these decisions extend the meaning of the word "collision," as contained in a policy of insurance, to such incidents as an automobile falling through an elevator shaft (Wetherill v. Williamsburg City Fire Ins. Co.), where it was injured by the fall of the elevator on which it was being lowered, (Freiberger v. Globe Indemnity Co.), where it was damaged by a loaded, scoop of a steam shovel falling on it (Universal Service Co. v. American Insurance Co.), and where an automobile leaves the road and strikes an object outside and off the road, such as the body and banks of a ditch (Power Motor Co. v. U.S. Fire Ins. Co.) the bottom of a ditch (Fireman's Ins. Co. v. Savery), or an embankment (Interstate Casualty Co. v. Stewart), or where the driver swerved his car to the outer edge of a narrow road to avoid striking another car, and his automobile left the road, fell down the embankment, struck a rock and turned over (Polstein v. Pacific Fire Ins. Co.). But none of these cases hold that the mere impact of the car with the surface of the roadway, due to an upset, is a collision with another object within the meaning of the language of the policy. Others of said cases hold that there was no collision in such circumstances as where an automobile ran off the main road and down a bank of three or four feet into a river, causing damage to the car (Wettengell v. U.S. Lloyds), where the car skidded on a recently regraveled highway, was overturned, and violently struck an embankment at the side of the road (Fox v. Interstate Exchange Bank). In Southern Casualty Co. v. Johnson, the question of fact was whether the injury to the automobile was caused by colliding with an embankment of earth...