Bruener v. Twin City Fire Ins. Co., 31302.

• Decision Date: 05 October 1950
• Docket Number: 31302.
• Citation: 37 Wn.2d 181,222 P.2d 833
• Parties: BRUENER et ux. v. TWIN CITY FIRE INS. CO.
• Court: Washington Supreme Court

222 P.2d 833

37 Wn.2d 181

BRUENER et ux. v. TWIN CITY FIRE INS. CO.

No. 31302.

Supreme Court of Washington, en Banc.

October 5, 1950

Metzger, Blair, Gardner & Boldt, Tacoma, for appellants.

Harry Ellsworth Foster, Olympia, A. D. Gillies, Aberdeen, for respondent.

MALLERY, Justice.

On January 20 1949, the plaintiff had an automobile accident on the highway between Elma and McCleary. The pavement was icy, the car skidded, went out of control, left the pavement, straddled the ditch and jammed the front end into an embankment. The car did not turn over.

This action was brought to recover from the defendant insurance company the amount of damage to the car.

The pertinent part of plaintiff's insurance policy reads as follows:

'Coverage A--Comprehensive Loss of or Damage to the Automobile, Except by Collision or Upset.

'Any direct and accidental loss of or damage to the automobile except loss caused by collision of the automobile with another object or by upset of the automobile or by collision of the automobile with a vehicle to which it is attached. Breakage of glass and loss caused by missiles, falling objects, fire, theft explosion, earthquake, windstorm, hail, water, flood vandalism, riot or civil commotion shall not be deemed loss caused by collision or upset.'

The trial court, in granting judgment for the plaintiff, said: 'I am unable to intelligently distinguish this case in principle from the decision in 128 Wash. 480.' Ploe v. International Indemnity Co., 128 Wash. 480, 223 P. 327, 328, 35 A.L.R. 999.

The defendant appeals. It contends that the damage was caused by a collision, which is excluded from the coverage of the policy.

In his brief, respondent concisely states the issue and his contention in this case: 'The issue upon the present appeal cannot be resolved by resort to dictionary definitions of the word 'collision' or judicial determinations of what constitutes a collision, for a collision did occur after the car went out of control. But the question is: What was the proximate cause of the collision? If the proximate cause was from a peril insured against then the judgment below is correct. * * *' (Italics ours.)

It may be conceded at once that the trial court and the respondent correctly construe the Ploe case, supra, that it is in point, and must be overruled if this case is to be reversed.

The policy in the Ploe case, supra, covered 'accidental collision,' but did not cover an upset or skidding. The car skidded, went off the road, collided with a stump, and continued on down an embankment. This court, in holding that there could be no recovery, said: 'It seems to us that the proximate cause of the accident here involved was the skidding of the car, or its passing from the roadway from whatever cause, and the instant it left the roadway * * * its destruction [was] certain. Its subsequent contact with the stump was an incident which had, and could have, no effect upon the situation beyond hastening or delaying for an instant the final result. * * *'

The rule of the Ploe case, supra, is that the hazards which are covered and excluded from coverage by the terms of an insurance policy are the proximate causes of accidents, not the accidents themselves. Thus, the policy in that case covered the collision, but not the skidding, its proximate cause, so recovery was denied for the collision.

That rule applied to the present policy, which is comprehensive, and excepts collision, will permit a recovery for every collision which has a proximate cause, and the exception of the policy will only apply where there is no proximate cause for the collision. This collision had a proximate cause--skidding. Therefore, recovery should be allowed under the rule of the Ploe case, supra, unless we overrule it.

In the rare instances where proximate cause has any bearing in contract cases, it has a different meaning than when used in tort. This is pointed out in the case of Pacific Union Club v Commercial Union Assur. Co., 12 Cal.App. 503, 107 P. 728, 730, wherein the policy insured against fire, but not against loss caused directly or indirectly by earthquake. An earthquake destroyed the water mains, making it impossible to put out a fire. The court held that the insurance company was liable, because the earthquake did not start the fire, pointing out the distinction in the application of proximate cause: '* * * The...