Parker v. Niagara Fire Ins. Co.

• Decision Date: 28 December 1953
• Docket Number: No. A--13,A--13
• Citation: Parker v. Niagara Fire Ins. Co., 30 N.J.Super. 585, 105 A.2d 677 (N.J. Super. App. Div. 1953)
• Parties: PARKER v. NIAGARA FIRE INS. CO . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 585

30 N.J.Super. 585

105 A.2d 677

PARKER v.NIAGARA FIRE INS. CO

No. A--13.

Superior Court of New Jersey Appellate Division.

Argued Dec. 7, 1953.

Decided Dec. 28, 1953.

Walter H. Jones, Hackensack, argued the cause for appellant(Thomas J. Osborne, Jr., Newark, on the brief).

I. Irving Wittes, Elizabeth, argued the cause for respondent.

Before Judges JAYNE, FRANCIS and STANTON.

The opinion of the court was delivered by

JAYNE, S.J.A.D.

The evidence adduced at the trial of this case before the judge of the Union County District Court leaves the fundamentally essential factual information to which the law is to be applied in a state of abysmal incertitude and obscurity.We shall explain.

The defendant issued to the plaintiff one of those relatively youthful types of automobile insurance policies which are offered to the motorists under the attractive and assuasive title of 'Comprehensive Coverage.'The insurer obligates itself in capital letters comprehensively to indemnify the insured for loss of or damage to the insured's automobile, except by collision or upset.The insurer's contractual obligation is expressed in the policy as follows:

'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 with another object or by upset 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.'

But the policy is likewise capacious in that it embodies a variety of exclusions, notably the one of immediate pertinency which renders the so-called comprehensive coverage inapplicable:

'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.'

On the morning of March 12, 1952the plaintiff endeavored to start the engine of his Buick automobile and it would not operate.He summoned a mechanic from the Union County Buick Company, who was correspondingly unsuccessful in starting the motor, and the plaintiff's automobile was towed to the repair shop of the company.Upon disassembling the engine it was discovered that a dark brown substance had coated the insides of the cylinders causing a seizure of the pistons.'This substance or liquid had been circulated through the oil pump, through the gears and through the strainer.That was all in through there,' the mechanic explained.The oil pump did not appear to be out of order and oddly there was an adequate supply of oil in the crankcase, in which there was no visible trace of the brown substance.

The mechanic testified that although he had seen many engine seizures in his experience of 25 years, he had never before observed one of comparable characteristics.Moreover the seizure did not occur precipitantly during the operation of the engine.Did it occur immediately upon the immobilization of the pistons?No one knows.The reason for the condition seems to have been mysterious and a curiosity to ascertain it was naturally inspired.

A specimen of four ounces of the oil remaining in the crankcase was delivered to Jersey Testing Laboratories of Newark to detect the suspected presence in it of sugar or molasses.The report reads:

'Examination was made of oily residue and bearings obtained from a damaged motor.No evidence of sugar, abrasives or any other foreign substance other than oil disintegration products was found.

'Large amount of bearing metal particles present, indicate insufficient or deficient motor lubrication.'

It was explained that the discovery in the oil of the particles of babbitt metal indicated the motor had become heated to the temperature at which this metal commonly used in the bearings melts and descends into the crankcase.The mechanic testified that there was no evidence of scoring upon the surface of the cylinder which would be anticipated in such an event.

Perplexity continued at the trial when during its concluding moments the patient trial judge was heard to say, 'Actually we don't know what happened.I guess that's about the size of it.'

Thereafter a chemical engineer engaged in testing petroleum was interrogated.

'By the Court:

'Q.What we want to know, Mr. Handt, is what theories you have, if any, as to what happened in this case.A.Well, I think my theory is similar to Mr. Rader's, but whether the oil is at fault or the engine is at fault, you can't say from what I've heard.That's my opinion.If the engine overheated, it would cause a good quality oil--it's likely it would cause a good quality oil to form these varnishes and resins.However, if you had a very poor quality oil in the engine and under normal running conditions that also may cause this engine to have varnishes and resins formed in the chambers.

'Q.Would that be sufficient to cause this condition?A.I believe it would.

'Q.In normal operation of an engine, with sufficient oil, would the oil have coated in the manner testified in this case?A.I don't believe so.

'Q.Isn't it a fact that the oil coating in this manner evidenced that there was a breakdown in the oil itself?A.Yes.

'Q.Have you ever known of a situation such as this one which had resulted from the use of poor oil?A.Frankly, no.'

We should add that Mr. Rader, with whose opinion Mr. Handt was in general accord, testified that it was his belief that the dark brown substance was oil that had been scorched by frictional heat.

It seems to us that the predominant probability to be derived from the evidence is that the engine during its operation became abnormally heated due to the inadequacy of proper...