Morie v. New Jersey Mfrs. Indem. Ins. Co.

• Decision Date: 18 December 1957
• Docket Number: No. A--702,A--702
• Citation: 48 N.J.Super. 70,137 A.2d 41
• Parties: Amelia K. MORIE, Plaintiff-Respondent, v. NEW JERSEY MANUFACTURERS INDEMNITY INSURANCE COMPANY, Defendant-Appellant. Amelia K. MORIE, Plaintiff-Respondent, v. Charles NESI, trading as Nesi's Sunoco Service Station, Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 70

48 N.J.Super. 70

137 A.2d 41

Amelia K. MORIE, Plaintiff-Respondent, v. NEW JERSEY MANUFACTURERS INDEMNITY INSURANCE COMPANY,

Defendant-Appellant.

Amelia K. MORIE, Plaintiff-Respondent, v. Charles NESI, trading as Nesi's Sunoco Service Station,

Defendant-Respondent.

No. A--702.

Superior Court of New Jersey Appellate Division.

Argued Dec. 9, 1957.

Decided Dec. 18, 1957.

J. Peter Davidow, Millville, for appellant.

Lawrence N. Park, Camden, for respondent (Lipman & Casella, Vineland, attorneys; Philip L. Lipman, Vineland, of counsel).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Plaintiff sued defendant insurance company under its comprehensive automobile liability insurance policy to recover for damage to her automobile caused by an explosion. The company answered and by way of affirmative defenses alleged, among other things, that the damage was the direct result of a mechanical failure and not explosion and was excluded from coverage by the express terms of the policy. By separate complaint plaintiff sued defendant Nesi, trading as Nesi's Sunoco Service Station, charging him with having negligently serviced the automobile, with the result that an explosion occurred which damaged the car while in his custody. His answer denied negligence, and alleged that the work was done in a good and workmanlike manner, and the explosion was in no way related to that work.

The two complaints were consolidated for trial. The jury returned a verdict of no cause of action in Nesi's favor and of $1,500 against the insurance company. The company appeals from the judgment in plaintiff's favor. On the day of the argument plaintiff filed a 'remittitur' (in effect a consent) directing that her judgment be reduced to $900.

On the morning of January 10, 1956 plaintiff, discovering that she could not start her automobile, phoned Nesi at his service station, who thereupon sent his employee Coslot, with booster battery and cables, to start the car. He did so and, after driving plaintiff to her hairdresser's in her car, took it to the service station where Gefner, an automobile mechanic in Nesi's employ, installed a new battery. What happened then may best be described in Gefner's and Coslot's words. Gefner testified:

'I turned the key on, and I stepped on the accelerator * * * and she started right off and, holy mackerel, what a bang. * * *

'That noise was so loud that it scared me half to death. It shook the whole building, and pieces flew all over, and oil came out from the transmission, and there was an oil can on the side of the floor, and there one piece hit it, and bent the oil can right in.

'There was parts flew all over the place, and oil over the whole floor. There was a piece right up in the ceiling, * * *.'

Coslot said there was a 'loud bang,' a 'terrific bang,' and 'pieces of metal flew all over the floor, and one flew up to the ceiling and stuck there.'

There is no dispute that the damage to plaintiff's car was confined to the dynaflow transmission and its housing. None of her witnesses saw any signs of carbon or burn marks, either on the parts strewn over the garage floor and those left intact in the car, or on any part of the car. Nor did Professor Schneider, an expert metallurgist, who testified for the insurance company. However, he had not examined the damaged parts nor the car until some five months after the occurrence and after they had apparently been cleaned. He testified that the damage was the result of a mechanical failure caused by centrifugal force and not by an explosion. A portion of the dynaflow transmission--the torque converter which is immersed in some 11 quarts of oil--had broken away (by centrifugal force, he said) and shattered the 3/16 housing. Only the bottom part of this assembly, made of cast metals, was damaged. Although on direct examination he spoke of 'a metal failure,' he admitted on cross-examination that there was nothing wrong with any of the metals used in the assembly; nothing in his scientific examination of the pieces could lead to any conclusion other than that the metal was in perfect condition.

The court denied defendant insurance company's motions for dismissal made at the close of plaintiff's case and of the entire case.

Plaintiff claims that the damage to her automobile was caused by an explosion within the language of coverage D of the policy, which reads:

'Coverage D--Comprehensive Loss of or Damage to the Automobile, Except by Collision or Upset: To pay for any direct and accidental loss of or damage to the automobile, hereinafter called loss, except loss caused by collision of the automobile or by collision of the automobile with a vehicle to which it is attached. Breakage of glass and loss caused by missiles, falling objects, fire, theft, explosion, earthquake, windstorm, hail, water, flood, vandalism, riot or civil commotion shall not be deemed loss caused by collision or upset.'

Defendant counters with the contention that the damage was caused solely by mechanical breakdown or failure, within the purview of subparagraph (j) of the 'Exclusions' clause, which is separate and distinct from the main clause of the insurance agreement providing insurance against damage resulting from an explosion. The exclusionary clause reads as follows:

'This policy does not apply:

'(j) under coverages D, E, F and G, 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;'

Coverage D unquestionably insured against damage caused by explosion. However, plaintiff's only affirmative burden was to show 'direct and accidental' damage to the automobile. It was not her affirmative burden to prove that the loss was due to an explosion. The significance of an explosion under the language of the policy, from the standpoint of plaintiff's affirmative case, was to preclude any attempt by the company to avoid liability under the exception for collision or upset in coverage D by a contention that an explosion, if it had occurred, came within that exception. The burden was on plaintiff to bring herself within the provision of that clause. Subparagraph (j) of the exclusionary clause saved the company from liability where the damage was due to mechanical breakdown or failure, unless the mechanical breakdown or failure was, in turn, itself the result of other loss covered by the policy--such accidental loss as an 'explosion.' The burden was upon the insurer to establish its affirmative defense by proving that the loss fell within that specific policy exception. Exclusionary clause (j) is, in fact, a condition subsequent of the insurance contract, constituting a matter of defense which must be pleaded by the insurer to be available as a means of defeating recovery under the policy, and the burden of establishing that defense is upon the party pleading it. Center Garage Co. v. Columbia Insurance Co., 96 N.J.L. 456, 115 A. 401 (E. & A. 1921); Bosshardt v. Commercial Casualty Ins. Co., 124 N.J.L. 54, 11 A.2d 49 (E. & A. 1940); 21 Appleman, Insurance Law and Practice, § 12096, p. 12 (1947); cf. Whittle v. Associated Indemnity Corp., 130 N.J.L. 576, 33 A.2d 866 (E. & A. 1943).

Defendant first asserts that its motions for dismissal should have been granted, since plaintiff failed to meet her burden of proving an explosion. On appeal we consider only the latter motion and must accept as true all evidence which supports the view of the party against whom the motions were made. We must also give plaintiff the benefit of all legitimate inferences which may logically be drawn from the proofs as they stood at the close of the entire case. Melone v. Jersey Central Power & Light Co., 18 N.J. 163, 170, 113 A.2d 13 (1955), affirming 30 N.J.Super. 95, 103 A.2d 615 (App.Div.1954); Guzzi v. Jersey Central Power & Light Co., 20 N.J.Super. 296, 301, 90 A.2d 23 (App.Div.1952), reversed on other grounds 12 N.J. 251, 96 A.2d 387 (1953); Beck v. Monmouth Lumber Co., 137 N.J.L. 268, 271, 59 A.2d 400 (E. & A. 1948).

At the very outset it must be noted that defendant company misconceives the insurance policy in assuming that plaintiff had the burden of proving an explosion. We have already noted that plaintiff's only burden was to prove direct and accidental loss or damage not caused by collision or upset. There being not the slightest suggestion of collision or upset here, plaintiff's affirmative case was met by the testimony as to the physical event itself, described above. Clearly this was, on its face, direct and accidental damage to the automobile. The burden of establishing the operative facts under the exclusionary clause resting, as we have pointed out, on defendant, this must be deemed to include--the defense being loss by mechanical breakdown or failure--the negating of a causation of such breakdown or failure by explosion where, as here, there is a suggestion in the surrounding circumstances of a possibility of such an hypothesis. That is implicitly the obligation of the defendant under the exception incorporated in the exclusionary clause of causations of mechanical failure, etc., attributable to loss risks covered by coverage D. The defendant's burden under an exclusionary clause logically extends to all the conditions expressed there in for application of the exclusion.

We therefore conclude, as to this first branch of the appeal, that the court was bound to deny defendant's motion to dismiss, whatever may be thought of the sufficiency of the proofs to establish an explosion, insofar as the argument is premised on the contention that it was plaintiff's affirmative burden to prove an explosion.

However, defendant also contends that at the end of the entire case the only competent proof as to the cause of the accident was that it was brought about by mechanical failure alone, without...