Fireman's Ins. Co. of Newark v. Savery

Decision Date25 June 1924
Docket NumberNo. 11881.,11881.
Citation143 N.E. 612,88 Ind.App. 296
PartiesFIREMAN'S INS. CO. OF NEWARK, N. J., v. SAVERY.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Superior Court, Lake County; Virgil S. Reiter, Judge.

Action by J. Willis Savery against the Fireman's Insurance Company of Newark, N. J. Judgment for plaintiff, and defendant appeals. Affirmed.

Ibach, Gavit, Stinson & Gavit, of Hammond, for appellant.

Bomberger, Peters & Morthland, of Hammond, for appellee.

NICHOLS, J.

Action by appellee upon an insurance contract seeking to recover for damages to his automobile from an accidental collision alleged to have been within the terms of the insurance policy with appellant. A demurrer to the complaint was overruled. There was a trial by the court, which resulted in a finding and judgment in favor of appellee for $635.18.

[1] The errors assigned in this court are: (1) The action of the court in overruling the demurrer to the complaint; (2) in overruling the motion for a new trial. Both assigned errors present the same question, and that is as to whether, under the facts averred and proven, there was an “accidental collision” within the terms of the policy.

It is averred in the complaint, and appears by the facts proven, that the automobile involved, while being driven at a reasonable rate of speed, skidded and collided and came in contact with the bottom of a ditch, thereby accidentally colliding with the ground at said bottom, and that such collision resulted in the damages for the recovery of which this action was brought.

The insurance policy sued upon was made a part of the complaint. The collision clause therein, so far as here involved, is as follows:

“In consideration of an additional premium of $22.00 and subject to all conditions of this policy, the perils insured against hereunder are extended to include accidental collision, *** excepting: (1) Loss or damage to any tire, due to puncture, cut, gash, blow out, or other ordinary tire trouble; and excluding in any event loss or damage to any tire, unless caused in an accidental collision which also causes other loss or damage to the insured's automobile.”

The question here involved has not been decided by this court or the Supreme Court of the state. The case of Hoosier, etc., Co. v. Lanam (Ind. App.) 137 N. E. 626, is the only case in this state, so far as we have found, that involves the question of an accidental collision. The policy in that case insured against damages for accidental collision, but provided that contact with the roadbed on which the automobile was being driven or the sides thereof should not be regarded as a collision, and it was there held that as the car turned over partly on the roadbed and partly on the sides thereof there was no accidental collision under the terms of the policy. That there is much confusion and ambiguity as to the meaning of such expression is evident from the conflicting authorities that are found, not only in the American courts, but elsewhere as well. At the time that the policy involved in the instant case was issued, July 15, 1922, numerous cases were then in the books from which it was evident that the meaning of accidental collision as applied to circumstances such as in this case was not well defined. We do not deem it advisable to extend this opinion by undertaking to discuss and distinguish authorities in which accidental collisions were involved. The following cases, however, have held that the collisions therein considered were within the terms of the policies sued on: Freiberger v. Globe Indemnity Co., 205 App. Div. 116, 199 N. Y. Supp. 310;Young v. New Jersey Ins. Co. (D. C.) 284 Fed. 492;Interstate Casualty Co. v. Stewart, 208 Ala. 377, 94 South. 345, 26 A. L. R. 427;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. Employer's, etc., Corp., 170 Ill. App. 379;Harris v. American Casualty Co., 83 N. J. Law, 641, 85 Atl. 194, 44 L. R. A. (N. S.) 70, Ann. Cas. 1914B, 846;Hardenburgh v. Employers' Casualty Co., 78 Misc. Rep. 105, 138 N. Y. Supp. 662-while the following cases have held that the collisions under consideration were not within the terms of the policies sued on: Continental Casualty Co. v. Paul (Ala. Sup.) 95 South. 614;Southern Casualty Co. v. Johnson, 24 Ariz. 221, 207 Pac. 987;Moblad v. Western Indemnity Co., 53 Cal. App. 683, 200 Pac. 750;Bell v. American Ins. Co., 173 Wis. 533, 181 N. W. 733, 14 A. L. R. 179;Fox v. Interstate Exchange (Wis.) 195 N. W. 842; Lester V. Alexander v. Home Ins. Co., Syllabus No. 1451, Sup. Ct. of Hawaii; Royal Hawaiian Sales Co., etc., v. Home Ins. Co., Syllabus No. 1449, Sup. Ct. 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.

As insurance companies, such as appellant herein, usually employ able...

To continue reading

Request your trial
5 cases
  • Hossley v. Union Indemnity Co. of New York
    • United States
    • United States State Supreme Court of Mississippi
    • January 26, 1925
    ...... self destruction." Ins. Company v. Guller, 119. N.E. 173; Teller v. M. W. A., 165 N.W. 584;. ...S.) 722. This writing is. ambiguous. Fireman's Insurance Co. v. Savery, 143 N.E. 612. . . Appellee's. demurrer to the plea sets ......
  • Brown v. Union Indemnity Co.
    • United States
    • Supreme Court of Louisiana
    • October 6, 1925
    ......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 ... 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. ......
  • Brown v. Union Indemnity Co.
    • United States
    • Court of Appeal of Louisiana (US)
    • April 11, 1925
    ...... case of Fireman's Ins. Co. of Newark, N. J., vs. Savery (143 N.E. 612), the above question was ......
  • Fogarty v. Fid. & Cas. Co.
    • United States
    • Supreme Court of Connecticut
    • August 3, 1935
    ......Protection Ins. Co., 8 Conn. 459, 466, 21 Am. Dec. 686; 6 Cooley, Briefs on Insurance [2d ...Co., 203 Mo. App. 603, 219 S. W. 688; Fireman's Ins. Co. v. Savery, 88 Ind. App. 296, 143 N. E. 612.         The burden was upon the ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT