Lunn v. Indiana Lumbermens Mut. Ins. Co.

• Decision Date: 03 May 1947
• Citation: 201 S.W.2d 978,184 Tenn. 584
• Parties: LUNN v. INDIANA LUMBERMENS MUT. INS. CO.
• Court: Tennessee Supreme Court

201 S.W.2d 978

184 Tenn. 584

LUNN v. INDIANA LUMBERMENS MUT. INS. CO.

Supreme Court of Tennessee.

May 3, 1947

Error to Circuit Court, Davidson County; J. G. Lackey, Jr., Special Judge.

Action by W. E. Lunn, individually, etc., against Indiana Lumbermen's Mutual Insurance Company to recover on an automobile comprehensive policy. To review a judgment for plaintiff, defendant brings error.

Assignment of error sustained and suit dismissed.

Richard Marshall, of Nashville, for defendant in error, Lunn.

Ferriss C. Bailey, of Nashville, for plaintiff in error, Insurance Co.

TOMLINSON Justice.

This case comes directly to this court from the circuit court because all the facts are stipulated.

Plaintiff in error, hereinafter called the insurer, did for a valuable consideration issue to the defendant in error, hereinafter called the insured, an insurance policy wherein the insurer 'agrees to pay for direct and accidental loss of or damage to the automobile' of the insured with respect to the following coverages:

A 'Comprehensive--Loss of or Damage to the Automobile Except by Collision but including Fire, Theft and Windstorm'.

There was also a coverage for collision or upset with which we are not concerned in this case.

This policy under the heading 'Exclusions' provided as follows:--'This policy does not apply: (d) under any of the coverages, to any damage to the automobile which is due and confined to wear and tear, freezing mechanical or electrical breakdown or failure, unless such damage is the result of other loss covered by this policy.'

The stipulation of the parties, in so far as pertinent to the issue involved, is that the automobile in question was damaged in the following manner:

'Plaintiff was driving his automobile to Nashville on Highway 41-W. The hood of the car was so built that same raised from the front of the car and when lifted up, came back and the entire hood would swing on hinges near the windshield and when fastened down the hood was fastened by a latch at the front end of the car.

'If the plaintiff introduced proof it would be proved that the hood became unfastened by reason of the latch breaking and the hood as a result of becoming unfastened was thrown up and back against the front of the car, causing damage in the amount of $78.50.

'It is agreed that the latch had on a previous occasion been broken and had been welded. It is also agreed that the wind caused by the moving of the automobile caused the hood to be thrown up and back after the latch was broken.'

The insured instituted suit on the insurance contract and insisted that he was entitled under the above quoted coverage A (comprehensive) of the policy to payment for the damages which resulted from the above stated events. The insurer insisted that the damages in question came within the above quoted Exclusion (d) of the policy and, therefore, that it is not liable for these damages. The General Sessions Court sustained the contentions of the insurer, but the circuit court, without stating the grounds upon which its conclusion was based, rendered a judgment in favor of the insured for the damages sustained, and the Insurance Company has appealed to this court. The assignment of error is directed to the insistence that the damage in question comes within the exclusion clause of the policy and, therefore, the defendant is not liable under this policy for the damage done.

It must be recognized at the outset that the insurer is liable under the comprehensive clause of the contract unless the facts which occasioned the accident and its consequent damage come within this exclusion clause. This necessitates a construction of that clause. The language thereof material here is 'this policy does not apply to any damage to the automobile which is due and confined to--mechanical breakdown'. It is clear that the breaking of the defective latch was a mechanical breakdown.

However the litigants disagree as to the meaning of the expression 'confined to' as used in this clause and the true meaning of this expression as used in this clause is very material to the issue of whether the insurance company is liable under this contract. The insured insists that the expression is meant to 'restrict the exclusion to the actual part which broke'. That is, that the insurer is by this expression only relieved from payment for repair of the defective part, but continues to be obligated to pay for the damage done to any other part of the automobile by the breaking of the defective part. This exclusion clause expressly states that 'this policy does not apply under any of the coverages to any damage to the automobile which is due and confined to', etc. (The italics are ours.) We must give the generally accepted meaning to the expression 'any damage to the automobile'. In doing so, we are forced to the conclusion that the expression 'confined to' cannot be given this construction insisted upon by the insured without doing violence to the other pointed out language of the sentence. The insurer insists that the expression 'confined to' means that the exclusion 'will not apply to any damage done to the car by reason of an intervening cause', but will apply to any damage done to any part of the automobile solely by reason of the mechanical...