Hoosier Mutual Automobile Insurance Company v. Lanam

• Decision Date: 12 January 1923
• Docket Number: 11,455
• Citation: 137 N.E. 626,79 Ind.App. 629
• Parties: HOOSIER MUTUAL AUTOMOBILE INSURANCE COMPANY v. LANAM
• Court: Indiana Appellate Court

137 N.E. 626

79 Ind.App. 629

HOOSIER MUTUAL AUTOMOBILE INSURANCE COMPANY v. LANAM

No. 11,455

Court of Appeals of Indiana

January 12, 1923

Rehearing denied May 11, 1923.

From Bartholomew Circuit Court; John W. Donaker, Judge.

Action by George Lanam and another against the Hoosier Mutual Automobile Insurance Company. From a judgment for plaintiffs the defendant appeals.

Reversed.

Baker & Richman and Harvey Harmon, for appellant.

George W. Long and John Rynerson, for appellees.

NICHOLS C. J. Batman, J., dissents.

OPINION

NICHOLS, C. J.

Action by appellees on a contract of automobile insurance.

The only error presented by this appeal is the action of the court in overruling appellant's demurrer to the complaint. The policy sued on and which is made an exhibit to the complaint promises compensation among other things for: "The accidental collision of the automobile herein insured while the policy is in force, with any object, movable or immovable, * * * provided, however, that contact with the roadbed on which said automobile is being driven, or the sides thereof, shall not be regarded as a collision, and is not a risk insured against hereunder."

It is averred in the complaint that on the day of June, 1921, and while said policy was in full force appellees were driving the automobile described in said policy, from Columbus Indiana, westward on the cement road leading to Nashville, Indiana. That said road at the point of the accident hereinafter described is of the following width, dimensions and construction, to wit: That said road at the place of the accident involved is sixty feet in width from property line to property line; that the roadbed is constructed of cement, in the central portion thereof to a width of twenty-four feet, upon which vehicles travel, traveling on no part of said road on the outside of said cement; that on the north side of said roadway where the cement joins the earth the ground is level, for about two feet, with said cement roadbed, then a gradual slope downward for a distance of about three feet, the fall of said distance being about one foot, to a point level with the surrounding lands; that on the north of said road at said point is a field, which in the year 1921, was sown in wheat; that the land is cultivated up to within five feet of said concrete and up to the point where said slope stops. That when appellees had proceeded about a mile west of the city of Columbus on said road and were driving at the rate of about twenty miles per hour along the north side thereof they attempted to pass an automobile which was being driven in front of them along the center of the public highway, and in doing so drove across the said road to the south side thereof so as to pass on the left side of said automobile; that as they started to pass said automobile they noticed a buggy drawn by a horse approaching along said south side, and, there not being sufficient room to pass between said horse and buggy and said automobile, and to prevent colliding with said horse and buggy and said automobile appellees turned their car sharply to the north and in...