Rea v. Motors Ins. Corp...

• Decision Date: 05 January 1944
• Docket Number: No. 4800.,4800.
• Citation: 48 N.M. 9,144 P.2d 676
• Parties: REAv.MOTORS INS. CORPORATION.
• Court: New Mexico Supreme Court

48 N.M. 9

144 P.2d 676

REA

v.MOTORS INS. CORPORATION.

No. 4800.

Supreme Court of New Mexico.

Jan. 5, 1944.

Appeal from District Court, Chaves County; J. C. Compton, Judge.

Action by J. E. Rea against Motors Insurance Corporation on an automobile policy. From a judgment for defendant, plaintiff appeals.

Affirmed.

Trial court's conclusion that conduct of intoxicated motorist wantonly, willfully, and recklessly driving without an actual purpose to injure into insured parked automobile was malicious mischief within coverage of automobile policy was a conclusion of law, and was inappropriately denominated a finding.

E. E. Young, of Roswell, for appellant.

L. O. Fullen, of Roswell, for appellee.

MABRY, Justice.

J. E. Rea, plaintiff-appellant (hereinafter called appellant) brought suit against Motors Insurance Corporation, Inc., defendant-appellee (hereinafter called appellee) to recover upon a certain insurance policy issued by appellee in favor of appellant upon his certain automobile alleged to have been damaged to the extent of $504.05 through “malicious mischief”, resulting in a “collision” and arising through the conduct of one Ross Ledbetter.

The trial court held that the accident complained of, while constituting malicious mischief, did not afford recovery under the insurance policy relied upon since such injury to appellant's car was brought about through “collision”, for which there was no insurance coverage, and not through “malicious mischief”. Recovery was denied and this appeal follows.

Appellant's car, while properly parked on a main street in the city of Roswell, New Mexico, was struck and substantially damaged and injured through collision with a car driven by the said Ross Ledbetter who struck the parked car, and who was, at the time, driving upon the street under the influence of intoxicating liquor and driving in a wanton, willful, reckless manner. Under the policy of insurance relied upon appellant was protected under coverage which provides for (A) fire, lightning and transportation; (B) theft; (C) combined additional coverage including among other things “malicious mischief” and “vandalism”; and (D) comprehensive-certain additional specified loss of or damage to automobile, excluding that resulting from collision. It is upon coverage C above mentioned that appellant relies. Sec. D of the policy reads: “Any loss of or damage to the automobile except loss by collision of the automobile with another object ***”. The policy further shows that this Sec. D embraces what is commonly known as “comprehensive” coverage “including A, B and C.” There is an additional Sec. E entitled “collision or upset” under which it is agreed appellant was not insured; and it is because there was no protection under this section that appellee relies in sustaining the lower court's judgment. This Section E covers “loss of or damage to the automobile caused by collision of the automobile with another object or by upset of the automobile ***”.

Although appellant presents and argues the matters here urged for review under several points, the question presented can very appropriately be disposed of, as appellee shows, by consideration of the single question of whether or not the damage resulted from “collision” as distinguished from “malicious mischief”. If from collision only, obviously appellant cannot prevail.

The trial court held that the act of Ledbetter in so driving his car down the street while intoxicated and in the wanton, willful, reckless manner in which he was operating it, was sufficient in law to constitute “malicious mischief”, and would, therefore, come within the coverage defined in Sec. C of the policy; but, it further holds, that since the damage resulting from such acts was, nevertheless, caused by a collision, and there being no coverage for damage through collision, appellant could not recover. Appellee urges (and he has appropriately saved the question for review) that, notwithstanding the trial court was correct in appraising the damage incurred as that residing from a collision, and therefore outside the policy coverage, that, nevertheless, the court was wrong in appraising the conduct of the driver as “malicious mischief”.

The following embraces the entire language found under the insuring agreements of the policy and heretofore referred to as coverage Sections A, B, C, D and E:

“Coverage A-Fire, Lightning and Transportation: Loss of or damage to the automobile caused (a) by fire or lightning, (b) by smoke or smudge due to a sudden, unusual and faulty operation of any fixed heating equipment serving the premises in which the automobile is located, or (c) by the stranding, sinking, burning, collision or derailment of any conveyance in or upon which the automobile is being transported on land or on water.

“Coverage B-Theft (Broad Form): Loss of or damage to the automobile caused by theft, larceny, robbery or pilferage.

“Coverage C-Combined Additional Coverage: Loss of or damage to the automobile caused by windstorm, earthquake, explosion, hail, external discharge or leakage of water, flood or rising waters, riot or civil commotion, the forced landing or falling of any aircraft or of its parts or equipment, or malicious mischief or vandalism, except that $25 shall be deducted from the amount of each determined loss resulting from malicious mischief or vandalism. The retained minimum premium for this coverage shall be 25% of the annual premium.

“Coverage D-Comprehensive-Loss of or Damage to the Automobile, Except by Collision: Any loss of or damage to the automobile 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. (Emphasis ours).

“Coverage E-Collision or Upset: Loss of or damage to the automobile caused by collision of the automobile with another object or by upset of the automobile, but only for the amount of each such loss in excess of the deductible amount, if any, stated in the declarations as applicable hereto.”

The policy contains a further provision that it is “subject to the limits of liability, exclusions, conditions and other terms of the policy”.

Appellee appropriately emphasizes the fact that the insurer, under Coverage D (the comprehensive clause), was particularly exempted from liability for damages to appellant's car resulting from collision; that coverage D also includes, among specific coverages, A, B and C already mentioned, but that liability under Coverage E, (the coverage specifically going to damages from collision) which appellant elected not to procure, is expressly exempted.

The record clearly shows that the sole damage to appellant's car was occasioned by the impact from the Ledbetter car which was driven into it while parked upon the city streets. There is no dispute that a collision occurred and that damages resulted therefrom.

[1] We should have no trouble in arriving at an understanding of what is meant by “collision”. We find the general principle laid down in vol. 6 of Blashfield's Cyclopedia of Automobile Law and Practice, Perm. Ed., § 3691, where it is stated: “One common type of automobile insurance policy is that expressly covering damages to the insured car by reason of its being in accidental collision, during the life of the policy with another automobile, vehicle, or object. The word ‘collision’ in such a policy has its ordinary meaning of striking together or striking against. It includes the case of an automobile striking against another object, alike whether the object be standing or in motion, or regardless of whether both bodies are in motion, or one, no matter which, is stationary, and the other in motion.”

See, also, Moore v. Union Mutual Fire Ins. Co., 112 Vt. 218, 22 A.2d 503.

Appellee urges that appellant must recover, if at all, (a) under the malicious mischief clause of the policy upon the theory that Ledbetter's conduct amounted to malicious mischief within the meaning of the insurance policy, and then (b) it must be shown, in addition, that the damage suffered was proximately occasioned by such “malicious mischief” and not by “collision” as the term is to be understood. Drunken and reckless driving, argues appellee, absent any specific design to injure, does not constitute malicious mischief-and this is the controlling point to be decided; that because damage through malicious mischief was made a recoverable injury in a portion of the policy separate and apart from that where “collision” is referred to and provided for, it could not be coupled with and treated as synonymous with the term “collision”; that two separate and distinct injuries are thus contemplated by the contract of insurance and recovery cannot be had for damages resulting from malicious mischief when such damages necessarily flowed from an ordinary collision; that the damages here complained of did, in fact, result from an ordinary collision against which appellant chose not to insure.

Appellee agrees that had malicious mischief been done, with some injury resulting therefrom before the collision and under circumstances where the degree of the two injuries-that arising from malicious mischief and that flowing from the collision-could be reasonably segregated, recovery might be had for the malicious mischief as distinguished from the additional injury which was caused by the collision. There seems to be no contention here, however, that there is any place to apply such rule of separation, since there was no injury resulting to appellant's car by the driver Ledbetter prior to the impact of the two automobiles. If the damage were from collision, correctly argues appellee, it is not necessary to search for...