Hamilton v. American Indem. Co.

• Citation: 82 Pa.Super. 191
• Decision Date: 19 November 1923
• Docket Number: 162-1923
• Parties: Hamilton v. American Indemnity Company, Appellant
• Court: Superior Court of Pennsylvania

82 Pa.Super. 191

Hamilton v. American Indemnity Company, Appellant

No. 162-1923

Superior Court of Pennsylvania

November 19, 1923

Argued October 10, 1923

Appeal by defendant, from judgment of Municipal Court of Philadelphia-1922, No. 734, on verdict for plaintiff in the case of James A. Hamilton v. American Indemnity Company.

Assumpsit on policy of insurance. Before Walsh, J.

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff in the sum of $ 1,048.09 and judgment thereon. Defendant appealed.

Errors assigned, among others, were the charge of the court and refusal of defendant's motion for judgment non obstante veredicto.

Harry R. Axelroth, for appellant. -- The damage to the truck was not covered by the policy: Douherty v. Insurance Company of North America, 38 Pa.County Ct. Reports 119; Stuht v. U.S. Fidelity & Guaranty Company, 154 P 137; O'Leary v. St. Paul Fire and Marine Insurance Company, 196 S.W. 575; Bell v. American Insurance Co., 181 N.W. (Wis. 733).

Albert L. Moise, for appellee. -- The accident was a collision within the meaning of the policy: Wetherill v Williamsburg City F. Ins. Co., 60 Pa.Super. 37; Harris v. American Casualty Co., 83 N.J. 461; Stix v. Travelers' Indemnity Co., 175 Mo.App 157; 6 Corpus Juris 867; Harvey v. Georgia Insurance Co., 81 S.E. 206.

Before Orlady, P. J., Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.

OPINION

GAWTHROP, J.

Plaintiff sued in assumpsit on an insurance policy issued to him by defendant and insuring certain motor trucks against certain hazards. This appeal is from a judgment entered on a verdict for plaintiff. Plaintiff's employee was driving the truck southwardly on Rising Sun Avenue, Philadelphia. The traveled roadbed was about wide enough for three trucks to pass each other at the same time. On each side of the traveled way was a trolley track. The rails were T rails about four and a half inches high and set upon ties like railroad tracks with no ballast between the rails. The top of the inside rails was flush with the surface of the highway. The truck driver turned off of the traveled roadbed on his left, putting his left front and rear wheels between the rails of the trolley track in order to pass another truck which was standing in the middle of the road. He continued to travel at a speed of about fifteen miles an hour, bumping over the ties, and then tried to turn back into the roadway. When his front left wheel came into contact with the rail, the truck turned over and the damage sued for followed. The right of plaintiff to recover depends upon the construction of the rider which was attached to the policy of insurance. It read as follows:

" In consideration of $ 2,329 premium and subject to all its other terms, conditions, limitations and agreements, the policy to which this endorsement is attached is hereby extended to cover:

" Against loss and or damage to the automobile described herein, including its operating equipment if caused solely by accidental collision with another object, either moving or stationery, excluding, however, all loss and or damage by fire arising from any cause whatsoever."

The question is whether the damage was the result of accidental collision with another object. Conceding that it is the rule to construe the language of an insurance contract liberally in favor of the insured so as not to defeat, without clear necessity, his claim to indemnity which it was his object to secure, still the language must be construed in its plain, ordinary, popular sense. What is the plain, ordinary meaning and popular sense in which the words " accidental collision with another object" were used? It would be a work of supererogation to discuss the question if the words " collision with another object" were not modified by the word " accidental." This court held in Wetherill v. Williamsburgh Insurance Co., 60 Pa.Super. 37, that the words " collision with another object" covered the case of one who backed an automobile into the open area of an elevator shaft and the car was damaged by falling to the ground floor below. But in that case the hazard insured against was " collision" and not " accidental collision." In our opinion that fact distinguishes that case from the case at bar. The definitions of an accident as given in the Century...