Morton v. Blue Ridge Ins. Co.

• Decision Date: 27 September 1961
• Docket Number: No. 96,96
• Parties: Odell L. MORTON v. BLUE RIDGE INSURANCE COMPANY.
• Court: North Carolina Supreme Court

Page 716

121 S.E.2d 716

255 N.C. 360

Odell L. MORTON v. BLUE RIDGE INSURANCE COMPANY.

No. 96

Supreme Court of North Carolina.

Sept. 27, 1961

Harvey Hamilton, Jr., and George W. Ball, Morehead City, for plaintiff, appellee.

C. R. Wheatly, Jr., and Thomas S. Bennett, Beaufort, for defendant. appellant.

BOBBITT, Justice.

Defendant's assignment of error, directed to the court's denial of his motion for an order requiring the plaintiff to make the allegations of his complaint more definite and certain, is without merit. Such an order, under G.S. § 1-153, is to enable the movant to prepare his defense. Such a motion may not be made after judgment.

Defendant's motion captioned, 'Motion In Arrest Of Judgment,' is in fact a motion to vacate the judgment by default and inquiry on the ground the complaint fails to allege facts sufficient to constitute a cause of action and therefore will not support such judgment.

In Presnell v. Beshears, 227 N.C. 279, 41 S.E.2d 835, 836, in passing upon a like motion, this Court, in opinion by Devin, J. (later C. J.), said: 'The effect of the failure of the defendants to appear in response to the summons and complaint personally served upon them was to establish pro confesso in the plaintiff a right of action of the kind properly pleaded in the complaint and thereupon the plaintiff became entitled as a matter of law to recover on the cause of action set out in his complaint. G.S. § 1-212; DeHoff v. Black, 206 N.C. 687, 175 S.E. 179; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67. Defendants' failure to answer, however, admitted only the averments in the complaint and did not preclude them from showing, if they could, on this motion, that such averments were insufficient to warrant recovery. Beard v. Sovereign Lodge, W. O. W., 184 N.C. 154, 113 S.E. 661; Strickland v. Shearon, 193 N.C. 599, 604, 137 S.E. 803. Hence they were entitled to have the judgment vacated if the facts set out in the complaint should be determined to be insufficient to constitute a cause of action, as there would then be no basis upon which the default judgment could be predicated.'

As stated in Judge Cowper's judgment, this Court, on former appeal, did not consider a demurrer ore tenus to the complaint. Indeed, nothing in our records indicates defendant (then appellee) filed such demurrer in this Court although its brief contained references to such demurrer and arguments and citations in support thereof. Be that as it may, the complaint is now challenged on the ground it does not allege facts sufficient to state a cause of action; and the rules for testing its sufficiency are the same whether this challenge be by demurrer, Howze v. McCall, 249 N.C. 250, 106 S.E.2d 236, or by motion to set aside the judgment by default and inquiry, Presnell v. Beshears, supra.

'Unless there are special limitations in a policy insuring against loss of, or damage to, an automobile caused by accidental collision, the coverage extends to all losses caused by accidental collision however occasioned, and such a policy does not usually exclude damage caused by negligence.' 45 C.J.S. Insurance § 798a.

'A collision clause is strongly construed against the insurer upon the basis that, if it desired to insert exceptions precluding liability under the circumstances presented, it should have done so by inserting such exceptions as would limit the effect of the general terms employed. ' Appleman, Insurance Law and Practice, § 7465.

The foregoing general statements are quoted, in whole or in part, by Denny, J., in Suttles v. Blue Ridge Insurance Co., 238 N.C. 539, 78 S.E.2d 246.

In Hallock v. American Casualty Co., 207 N.C. 195, 176 S.E. 241, 243, the policy provided for the payment of loss 'if caused solely by Accidental collision with another object either moving or stationary. ' A chauffeur, operating plaintiff's automobile, ran off the road and down a bank into bottom land, where the automobile turned over on its side. Judgment for the plaintiff was affirmed by this Court.

In Hallock, defendant contends, the plaintiff's pleading and evidence revealed that the automobile collided 'with an object.' Defendant refers to the bank as the object with which the automobile collided. (Consideration of the evidence in Hallock indicates the collision causing the damage occurred when the automobile struck the bottom land and turned over.) Be that as it may, defendant is correct in its contention that the question, whether water is 'an object' within the meaning of the collision clause, was not presented or discussed in Hallock. This question is one of first impression in this jurisdiction.

In 45 C.J.S. Insurance § 797b(1), it is stated: 'There cannot be a collision within the coverage of a policy insuring an automobile against loss or damage from collision without the presence of an object with which to collide. Where the risk designated in such a policy is collision with an object, in general the word 'object' is used in its ordinary and usually accepted sense as meaning anything tangible or visible. Since the phrase 'being in collision with an object,' as commonly used in such policies, is of so general an import, any effort to classify the objects with which a car may collide is futile, and it has been laid down broadly that, in the absence of a restriction as to the kind of object, a collision may occur with any object.'

In Sunderlin on Automobile Insurance, § 711, the author states: 'Water and land are objects--physical objects. They are not abstract or imaginary, but tangible, visible, concrete, and real, and may be perceived and apprehended by the mind. The understanding has knowledge of them. An insured automobile which runs into either water or land collides with an 'object.' ' The clear weight of authority supports this oft-quoted statement. Harris v. American Casualty Co., 83 N.J.L. 641, 85 A. 194, 44 L.R.A.,N.S., 70; Gans v. Columbia Ins. Co., 99 N.J.L. 44, 123 A. 240; Columbia Ins. Co., Jersey City, N. J. v. Chatterjee, 93 Okl. 249, 219 P. 102; Tinker v. Boston Ins. Co., 106 Okl. 206, 233 P. 1058; Ringo v. Automobile Ins. Co., 143 Or. 420, 22 P.2d 887; Long v. Royal Ins. Co., 180 Wash. 360, 40 P.2d 132, 105 A.L.R. 1423; Providence Washington Ins. Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379; Washington Fire & Marine Ins. Company v. Ryburn, 228 Ark. 930, 311 S.W.2d 302; Appleton, op. cit., § 3205; 45 C.J.S. Insurance § 797b(2).

In Ringo v. Automobile Ins. Co., supra [143 Or. 420, 22 P.2d 889], the policy provided coverage against '(d)irect loss or damage to the automobile described, caused solely by accidental collision with another object or by upset. ' Plaintiff, while driving his automobile along the highway struck 'something,' which caused his car to skid and strike a bank and go over the bank into a river. The defendant contended the damage to the insured automobile caused by being plunged into the river did not come within the coverage of the policy. The opinion of Justice Bailey, after reviewing prior decisions, concludes: 'There was, within the meaning of the policy, a direct loss or damage to plaintiff's automobile caused solely by accidental collision with another object. Plaintiff testified positively that the car, while being driven along the highway,...