Indemnity Co. v. Jones

• Decision Date: 21 June 1924
• Docket Number: 18146
• Citation: 111 Ohio St. 84,144 N.E. 596
• Parties: The Great American Mutual Indemnity Co. v. Jones.
• Court: Ohio Supreme Court

144 N.E. 596

111 Ohio St. 84

The Great American Mutual Indemnity Co. v. Jones.

No. 18146

Supreme Court of Ohio

June 21, 1924

Insurance - Interpretation favorabLe to insured - Automobile collision policy - Collision with paved roadway turning curve.

1. An insurance policy which contains language reasonably susceptible to different interpretations will be given the construction most favorable to the assured.

2. Under an insurance policy indemnifying the assured against direct loss or damage to the automobile therein described by "accidental collision with another object, either moving or stationary," and immediately after such provision are the following exceptions and limitations: "(Excluding however, under this clause only, ordinary breakage and all loss or damage by fire arising by reason of accidental collision). Loss or damage to any tire due to puncture, cut gash, blowout, or other ordinary tire trouble, or 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 automobile, shall not be covered thereby," the insurance company Is liable for injury to such automobile caused by a collision with the paved roadway as a result of turning a sudden and sharp curve which threw the automobile over on its side.

The facts are stated in the opinion.

Mr C H. Workman, for plaintiff in error.

Mr Frank De Lay and Mr. John E. Foster, for defendant in error.

MATTHIAS, J.

This action was brought to recover loss sustained by injury to plaintiff's automobile, upon which plaintiff carried an insurance policy in the defendant company, and the question presented is whether the policy of insurance covers the cause of the accident resulting in such injury. A demurrer to the petition was overruled, and the same question was presented by answer Upon trial, a jury having been waived, the court rendered judgment for plaintiff, which was affirmed by the Court of Appeals.

The facts disclosed by the record are substantially as stated in the petition, and for the purpose f this decision may be regarded as conceded. The accident occurred while the plaintiff was driving his automobile on the brick road from Hamilton to Dayton in this state. Just after crossing a bridge the road curved sharply, which curve the driver because of darkness, could not see and had no knowledge thereof, and in attempting to make the curve the automobile turned over. It is conceded that the automobile upset when the plaintiff "swerved around with the curve," and that as a result of such turning over the automobile came into Collision with the paved roadway, which caused the injury to plaintiff's automobile for which he seeks to recover.

The portion of the insurance policy, the construction and application whereof is involved, is as follows:

"The Great American Mutual Indemnity Company * * * does hereby agree to * * * indemnify the assured against direct loss or damage to the body, machinery and equipment of each automobile * * * if caused while this policy is in force, by * * * (E) collision. Accidental collision with another object, either moving or stationary (excluding, however, under this clause only, ordinary breakage and all loss or damage by fire, arising by reason of accidental collision). Loss or damage to any tire due to puncture, cut, gash, blowout or other ordinary tire trouble, or in any event, loss or damage to any tire unless caused in an accidental collision which also caused other loss or damage to the insured automobile, shall not be covered hereby."

The primary question presented, therefore, is whether this injury resulted from "accidental collision with another object, either moving or stationary." It is elementary that an insurance polices a contract, and in the construction thereof, just as other contracts, words therein employed should be given their usual and ordinarily accepted meaning. It is settled also that "policies of insurance which are prepared by the insurance company and which are reasonably open to different interpretations will be construed most favorably to the insured." Mumaw v. Western & Southern Life Ins. Co., 97 Ohio St. 1, 119 N. E., 132.

Taking up for consideration the clause above quoted, it may be suggested that courts of last resort which have been called upon to construe that provision, or provisions of similar import, seem to be somewhat in conflict upon the question.

At the outset it must be agreed that the meaning of the word "collision" is "the act of striking or dashing together; a striking together of two bodies, the meeting and mutual striking or clashing of two or more moving bodies or a moving body with a stationary one." The language of this policy is "accidental collision with another object, either moving or stationary." The term "object," according to the Century dictionary includes "that which is put or which may be regarded as put in the way of some of the senses, something visible or tangible," or, as the Standard dictionary defines it, "anything which comes within the cognizance or scrutiny of the senses; especially anything tangible or visible." Was the forcible contact of the plaintiff's automobile with the paved roadway, occasioned in the manner above stated, an "accidental collision with another object?" One of the leading cases dealing with this question, and chiefly relied upon as an authority by counsel for plaintiff in error, is Bell v. American Ins. Co., 173 Wis. 533, 181 N. W., 733, 14 A.L.R. 179. In that case the court held that an insurance policy covering accidental collision with any other object did not cover an injury to the owner's car occurring while on the highway, when one side of the car gradually settled into the ground and the car toppled over, striking the ground, and that such casualty was not a "collision" as the word is commonly understood. However, the court in that case conceded that, applying the broad meaning of the term as given by lexicographers, a holding that such impact with the earth would constitute a collision seemed logical; but held that such would be a novel and unusual use and application of the word "collision." This case has been followed and its reasoning and conclusion applied in the case of Moblad v. Western Indemnity Co., 53 Cal. App., 683, 200 Pac., 750, where it was held that where the edge of the roadway on which an automobile had swerved gave way, causing the automobile to overturn, the damage to the automobile coming in contact with the ground was not caused solely by collision with another object within the provisions of the policy; and also by the Supreme Court of Alabama in Continental Casualty Co. v....