Skelly v. Fidelity & Casualty Company of New York
| Decision Date | 27 November 1933 |
| Docket Number | 122 |
| Citation | 169 A. 78,313 Pa. 202 |
| Parties | Skelly, Appellant, v. Fidelity and Casualty Company of New York |
| Court | Pennsylvania Supreme Court |
Argued October 3, 1933
Appeal, No. 122, March T., 1933, by plaintiff, from judgment of C.P. Cambria Co., June T., 1930, No. 139, in case of Emma M. Skelly, otherwise Emma Skelly Hess v. The Fidelity and Casualty Company of New York. Judgment affirmed.
Assumpsit on insurance policy. Before McKENRICK, J.
The opinion of the Supreme Court states the facts.
Compulsory nonsuit; refusal to take it off. Plaintiff appealed.
Error assigned, inter alia, was refusal to take off nonsuit quoting record.
Judgment affirmed.
J. M. Bennett, of Weimer & Bennett, for appellant.
John C. Sherriff, of Sherriff, Lindsay, Weis & Hutchinson with him Frank J. Hartmann, for appellee.
Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
This is an action brought to recover under the double liability clause of a policy of life-indemnity accident insurance providing that the amount payable for death shall be doubled if the bodily injury sustained by the assured was received "in consequence of the collapse of the outer walls of a building while the assured is therein." At the end of plaintiff's case, the court entered a compulsory nonsuit, which on motion it refused to take off. Plaintiff appealed.
On October 17, 1929, August Hess, the assured, was in the first floor of a small three-story brick addition to a large three-story hotel building. A steel railroad car of seventy tons capacity, loaded about two-thirds full of coal, got out of control at the top of a steep grade on a mountain a mile or more away from the hotel and ran away, down the track. It gained momentum and was traveling at approximately seventy miles an hour when it jumped the track alongside the hotel and catapulted with terrific force against the brick wall of the addition. The impact of the car tore a hole in the side of the addition and ripped away a small part of two walls thereof, carrying some of the walls through, so that the portion so carried, together with a part of the floor and a quantity of coal thrown from the car by its sudden stopping, struck the assured and caused his death. The hole caused by the car and the portion of the two walls ripped away comprised only a small part of the first story and basement wall area of the addition. Of the two walls which were struck by the car there were left standing a large and substantial portion of the basement and first story walls of the addition and all of those walls above the first story. The second and third story portion of the two walls, as well as a part of the first story and basement thereof, remained in their original position and intact. The other walls of the addition were intact and the entire building remained standing, with the hole torn in the addition.
The position of the appellant is that the company is liable to her under the double indemnity provision of the contract because, so it is argued, the outer walls of the building "collapsed" within the meaning of the policy. We cannot so construe the policy. The wall did not collapse, the runaway car tore a hole in it. It could no more be said that there was a collapse of the wall under the circumstances appearing than it could...
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