Harris v. Am. Cas. Co. of Reading, Pa.

• Decision Date: 21 November 1912
• Citation: 85 A. 194,83 N.J.L. 641
• Parties: HARRIS v. AMERICAN CASUALTY CO. OF READING, PA.
• Court: New Jersey Supreme Court

85 A. 194

83 N.J.L. 641

HARRIS

v. AMERICAN CASUALTY CO. OF READING, PA.

Court of Errors and Appeals of New Jersey.

Nov. 21, 1912.

Vredenburgh, J., dissenting.

Error to Supreme Court.

Action by Howard G. Harris against the American Casualty Company of Reading, Pa. Judgment for defendant, and plaintiff brings error. Reversed, and venire de novo awarded.

Wilson & Carr, of Camden, for plaintiff in error. John H. Backes, of Trenton, for defendant in error.

WALKER, Ch. The writ of error in this case brings under review the propriety of the direction of a verdict for the defendant in the Atlantic circuit where the issue between the parties was tried before a jury. The plaintiff in error was the owner of an automobile which was being driven by his chauffeur over a bridge on the highway between Atlantic City and Pleasantville. The sides of the bridge were protected by guard rails made of posts and planking. The car crashed through the rail on one side, and was precipitated into the stream below. The machine turned upside down after leaving the bridge, and rested in an inverted position on the bed of the stream. By agreement of counsel, it was stipulated that the liability of the defendant insurance company, if any, was the sum of $1,200. There were no disputed facts, and the question turned upon the construction of the contract of indemnity by which the plaintiff was insured by the defendant company. The policy was one insuring the plaintiff against loss and expense or both arising from ownership, maintenance, or use of an automobile, with an indorsement on the policy insuring against damage resulting from an automobile collision, which indorsement, so far as pertinent, reads as follows: "In consideration of an additional premium of seventy-five dollars ($75.00) this policy, subject to all its provisions and conditions, is hereby extended to include loss or damage to any automobile (including equipment) enumerated and described in the warranties, resulting solely from collision with any moving or stationary object; (excluding however) * * * (c) damage resulting from collision due wholly or in part to upsets." At the conclusion of the case each side moved for the direction of a verdict; the plaintiff, because the car collided with a moving and a stationary object, namely, the water and the earth under the water at the point where it ran off the bridge, and the defendant, because the moving water and stationary earth beneath, with which the machine came in contact, were not moving and stationary objects contemplated in the policy, and because, further, the machine upset, and the company was not, under the terms of the policy, liable for damages caused by an upset. The learned trial judge observed that he was unable to conclude that the damage to the plaintiff's automobile was the result of a collision with a moving or stationary object within the meaning of the policy, and therefore directed a verdict for the defendant; whereupon the plaintiff prayed an exception, which was granted and sealed accordingly.

Counsel for the defendant in error argues that there was no injury occasioned by reason of the collision of the automobile with the guard rail on the bridge, that whatever injury occurred was sustained by immersion and contact with the bed of the stream, and that the plaintiff's counsel at the trial disaffirmed any right of recovery on account of the collision with the guard rail. An inspection of the record does not show that the plaintiff's counsel unequivocally committed himself to that position. True, in arguing against defendant's motion for the direction of a verdict, the plaintiff's counsel remarked that the guard rail was not a factor except so far as it may have retarded the accident, but was not a factor in causing the accident, so that the situation was as though the machine had fallen off an unguarded roadway. Prior, however, to the motion for direction of a verdict, counsel for the plaintiff was asked by the court if he made any claim for damage by reason of the contact or collision with the rail, and he answered there would be some incidental damage that the car in colliding with the rail probably suffered, breaking lamps and so on, but that the question of damage was fixed at $1,200, and, if they were entitled to anything, it was $1,200, so he did not...