Colley v. Pearl Assur. Co.

• Decision Date: 01 June 1946
• Citation: 195 S.W.2d 15,184 Tenn. 11
• Parties: COLLEY v. PEARL ASSUR. CO.
• Court: Tennessee Supreme Court

195 S.W.2d 15

184 Tenn. 11

COLLEY v. PEARL ASSUR. CO.

Supreme Court of Tennessee.

June 1, 1946

Appeal from Chancery Court, Shelby County; L. D. Bejach, Chancellor.

Action by R. L. Colley against Pearl Assurance Company on a comprehensive coverage automobile policy. From a decree in favor of complainant, the defendant appeals.

Reversed and complaint dismissed.

W. C Rodgers, of Memphis, for complainant.

Evans Exby, Moriarty & Creson, of Memphis, for Ins. Co. for defendant.

GAILOR, Justice.

This is an appeal by the insurance company from a decree for $466.95 with interest, against it in favor of complainant on a policy of automobile insurance described in the original bill as 'insuring against loss of or damage to the automobile except by collision, but including fire, theft and windstorm.'

The cause having been tried below on a stipulation of facts, the appeal has come directly to this court. We do not know the grounds on which the chancellor based his decree in favor of the complainant, since the record contains no opinion of his and the recitals of the decree furnish us no clue.

While the automobile insured, was being driven on a Texas highway by complainant, the left front tire blew out, he lost control of the car, which after running some distance along the highway, collided with the abutment of a concrete bridge causing the damages for which the suit is brought.

There being no controversy that the policy was in effect at the time of the accident, pertinent provisions of it are as follows:

'Item 3. In consideration of the payment of the premium and in reliance upon the statements in the declarations and subject to the limits of liability, exclusions, conditions and other terms of this policy, the company agrees to pay for direct and accidental loss of or damage to the automobile, hereinafter called loss, sustained during the policy period, with respect to such and so many of the following coverages as are indicated by specific premium charge or charges:

'Coverages:

'A. Comprehensive--Loss of or damage to the automobile except by collision but including fire, theft and windstorm. * * * Actual Cash Value--Premium $6.00.' (Italics ours.)

No premiums were charged or paid for 'coverages':

'B-1, Collision or Upset;

'B-2, Convertible Collision or upset,' and it is not insisted that these 'coverages were a part of the risk. The total annual premium paid for the insurance was $6.

A further pertinent provision of the policy is:

'Coverage A--Comprehensive--Loss of or Damage to the Automobile, except by Collision. Any 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 missles, 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 * * *.

'Exclusions:

'This policy does not apply * * *

'(f) Under any of the coverages, to tires unless damaged by fire or stolen or unless such loss be coincident with other loss covered by this policy.' (Italics ours.)

By the insured, who admits that he did not have coverage for 'B-1, Collision and upset,' or for 'B-2, Convertible collision and upset,' it is insisted that the blowing out of the tire was the efficient and predominating cause of the damage, and that 'the collision with the abutment of the bridge was simply the resulting or consequential damages emanating from the blowout.' To support this contention, the insured cites the following: 'To justify recovery on a policy of insurance, it is not necessary that the peril insured against be the cause of the loss in the sense that it is the nearest cause in point of time or place. If the peril insured against be the efficient, predominating cause of the loss, it is regarded as the proximate cause thereof, although the result was brought about by a train of events set in motion by the particular peril and operating with reasonable certainty to occasion the loss.' Maness v. Life & Casualty Ins. Co. of Tenn. 161 Tenn. 41, 43, 28 S.W.2d 339.

We think that that rule is inapplicable to the facts of the present case. In the Maness case the insured was protected 'against the result of bodily injuries * * * if the insured shall be struck by a vehicle which is being propelled by * * * gasoline * * * while insured is walking or standing on a public highway.' 161 Tenn. at page 42, 28 S.W.2d at page 339.

The plaintiff there was walking along a highway when the wheels of a passing automobile cast a stone into his eye permanently blinding it. The activating factor or cause, was the moving automobile. Injury from that source was the express risk covered by the policy. Here, even if we accepted the statement of insured, which we do not, that the blowout was the efficient and predominating cause, the blowout or other damage to a tire was not an express risk of the coverage, but was an express exclusion from such coverage under (f) quoted above. All damage to tires was excluded when such damage was coincidental with some other risk covered by the policy. In the Maness case, supra, as stated, insurance was against bodily injury from a moving automobile. A moving automobile set a stone in motion which caused the injury. But since it was the moving automobile, against the risk of which there was insurance, which set the stone in motion, the moving automobile was the cause of the injury. We have no such situation here. On this record, not only the 'efficient and predominating,' but the proximate and necessary cause of the damage was the collision with the abutment of the bridge. The collision with the bridge might have occurred as it did without the precedent blowout, and the blowout might have occurred without the consequent collision. There were three factors in the chain or web of causation: (1) The blowout; (2) Loss of control of the car; (3) Collision with the bridge. Except for some damage to the tire, claim for which, under the circumstances, was excluded from the policy, factors (1) and (2) might have occurred exactly as they did without other...