City Coal & Supply Co. v. American Auto. Ins. Co.

• Decision Date: 12 November 1954
• Citation: 133 N.E.2d 415,99 Ohio App. 368
• Court: Ohio Court of Appeals
• Parties: , 59 O.O. 143 The CITY COAL & SUPPLY CO., Appellee, v. AMERICAN AUTOMOBILE INS. CO. et al., Appellants.

Page 368

99 Ohio App. 368

133 N.E.2d 415, 59 O.O. 143

The CITY COAL & SUPPLY CO., Appellee, v. AMERICAN AUTOMOBILE INS. CO. et al., Appellants.

Court of Appeals of Ohio, Mahoning County.

Nov. 12, 1954.

Syllabus by the Court.

1. Where a concrete-mixer truck sinks into the side of an excavation, burying the rear wheels of the truck, and both front wheels of the truck are thereby lifted slightly off the ground, such truck has not 'upset' within the meaning of that term as used in a provision of a comprehensive insurance policy excluding coverage for loss by collision or 'upset.'

2. Where the owner of such concrete-mixer truck removes it from the excavation into which it sank and protects it from further injury, such as hardening concrete and other further damage, such owner is entitled to reimbursement by the insurer for the amount expended in so removing the truck and the hardening concrete therefrom, under the terms of the policy which specify that the insured shall protect the truck from further damage, and that such reasonable expense incurred in affording such protection shall be deemed incurred at the insurance company's request.

Oscar A. Stephens, Youngstown, for appellants.

Nadler & Nadler, Youngstown, for appellee.

PHILLIPS, Judge.

The meaning of the word 'upset' as used in a policy of insurance issued by defendant companies to plaintiff corporation on a concrete mixer truck, owned and operated by it in its business of selling building supplies and concrete mixed in transit, and damages recoverable under the terms of such policy of insurance under the facts of this case, are the questions presented to this court by defendants' appeal on questions of law from the judgment of the court of common pleas, entered upon the finding of a judge thereof (sitting as the trier of fact, by waiver of trial by jury) for plaintiff in the amount of $1,031.50 in its action against defendants to recover for damage to such concrete mixer truck.

As plaintiff's driver backed the insured vehicle within three feet of a cellar excavation after unloading about one-half yard of concrete, and was preparing to unload the remainder thereof for the foundation of a house and while the driver was leaving the cab of such truck the rear wheels on each side of the rear thereof and the chute with which the concrete had been and was to be delivered sank into the side of the excavation and to the bottom thereof and were buried completely. One of the front wheels was lifted off the ground about a foot and a half and the other about six inches.

After manual efforts and the use of a wrecker, crane and a tractor were unsuccessful in removing it the concrete mixer truck was removed from the excavation the next day by a crane and tractor acting in unison and towed to plaintiff's supply yard, where the concrete which had hardened in the mixer barrel was removed by plaintiffs at a cost of $72.00, was repaired subsequently for $64.00, and was equipped with two new tires and tubes as replacements for the blown out tires with which it was equipped when the truck slid into the excavation, at a total expense of $223.19 exclusive of towing and removing, or attempting to remove, the truck from the excavation, all of which, including towing, was done at a cost of $1,031.50.

The provisions of the contract of insurance around which the controversy between the parties revolves provides:----

'Item 8.

'E. Comprehensive loss of or damage to the automobile, except by collision (but including fire, theft and windstorm). To pay for any direct and accidental loss of or damage to the automobile, hereinafter called loss, 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.'

'Item 10. Insured's duties when loss occurs--coverages D, E-1, E-2 and F. When loss occurs, the insured shall:

'(a) Protect the automobile, whether or not the loss is covered by this policy, and any further loss due to the insured's failure to protect shall not be recoverable under this policy; reasonable expense incurred in affording such protection shall be deemed incurred at the company's request.'

'Upset' has been defined oftentimes to mean 'to overturn, overthrow, or capsize; as to upset a carriage; to upset an argument, to upset a situation'. Synonym: Overturn. Webster's New International Dictionary, Second Edition.

Plaintiff maintains that 'when loss occurs, the insured shall 'protect the automobile, whether or not the loss is covered by this policy, and any further loss due to the insured's failure to protect shall not be recoverable under this policy; reasonable expense incurred in affording such protection shall be deemed incurred at the company's request''; and that the vehicle did not upset.

Defendants maintain that the vehicle upset and support their conclusion by citation of the following cases:----

'Where a vehicle loses its equilibrium and the overturning process commences and proceeds beyond the power of those in charge of the vehicle to stop its progress, the vehicle has 'overturned' or 'upset' within the meaning of policy insuring against damage to vehicle by upset or overturning.' Jack v. Standard Marine Ins. Co., Ltd., 33 Wash.2d 265, 205 P.2d 351, 8 A.L.R.2d 1426.

'Where wheels on right side of truck loaded with fruit sank down to the axle, a distance of two to three feet, in earthen shoulder of highway, causing load to shift its weight, and sideboards of truck were thereby broken and fruit was precipitated to the ground, damage to fruit was caused by 'overturning' of truck within policy providing for payment to insured on insured's liability as private or common carrier for loss or damage to goods caused by 'overturning of the motortruck and/or trailer' * * *.'

'Judge Gaston ruled as follows: 'As to the overturning, the degree of overturning has nothing to do with it. A slight overturning is as much an overturning as a complete overturning.'' Moore v. Western Assurance Co. of Toronto, Canada, 186 S.C. 260, 195 S.E. 558, 559.

'Where automobile was driven down a hill and onto a causeway across a river and there was a splash when automobile hit flood waters and automobile then slid over the causeway or into a chughole in a slanting position and wrecker which attempted to remove automobile could not get it out and the automobile turned over when wrecker turned loose of the automobile, there was a 'collision' or 'upset' within policy insuring owner of automobile for damage caused by collision of automobile with another object or by upset of automobile.' Proffitt v. Providence Washington Ins. Co., Tex.Civ.App., 234 S.W.2d 894, 895.

'Where trailer bed of truck was lifted by hydraulic hoist for purpose of emptying a load of slag but only slag on one side of trailer slid out causing truck to tip over until it rested on ground thereby...