Southern Cas. Co. v. Johnson

• Court: Arizona Supreme Court
• Writing for the Court: McALISTER, J.
• Citation: Southern Cas. Co. v. Johnson, 207 P. 987, 24 Ariz. 221 (Ariz. 1922)
• Decision Date: 29 July 1922
• Docket Number: Civil 1994
• Parties: SOUTHERN CASUALTY COMPANY, a Corporation, Appellant, v. J. F. JOHNSON, Appellee

207 P. 987

24 Ariz. 221

SOUTHERN CASUALTY COMPANY, a Corporation, Appellant, v. J. F. JOHNSON, Appellee

Civil No. 1994

Supreme Court of Arizona

July 29, 1922

APPEAL from a judgment of the Superior Court of the County of Santa Cruz. W. A. O'Connor, Judge. Affirmed.

Mr Leslie C. Hardy, for Appellant.

Mr. S F. Noon, for Appellee.

OPINION

McALISTER, J.

This is an action on a policy of automobile insurance issued to Bir Singh and J. F. Johnson, of Nogales, Arizona, on September 10, 1920, by the Southern Casualty Company, upon a certain seven-passenger Hudson car, model 1920 "O," for the sum of $3,000. From a judgment for plaintiff for the full amount prayed for, together with $450 statutory damages $150 attorney's fee, and costs, and an order overruling appellant's motion for a new trial, it has brought the case here for review.

An indorsement that, in consideration of an additional premium of $31, the policy also covers damages to the automobile "by being in accidental collision during the period insured with any other automobile, vehicle or object," was attached to the policy, which contained the usual provisions, among them being one stating that within sixty days after loss or damage the assured "shall render a statement to the company, signed and sworn to by said assured, stating the knowledge and belief of the assured as to the time and cause of the loss and damage, the interest of the assured and of all others in the property, the amount of damage and the amount claimed." In the original complaint, upon which appellee went to trial, neither a compliance with this provision nor a waiver of its terms was pleaded, but at the conclusion of his evidence the court permitted him to amend his complaint. to conform to his proof, introduced over objection, that appellant had waived the filing of the proof of loss.

The first two assignments challenge the sufficiency of the evidence to support the finding, and the judgment based thereon, that the automobile was injured by being in an accidental collision with the canal embankment. It appears from the testimony that the car was sold by Johnson to Bir Singh, and $500 paid on the purchase price, both parties becoming coinsurees under the policy, though Bir Singh transferred his interest in it to Johnson before suit was filed; that Bir Singh drove the car to the Imperial Valley, California, where it was to be used, and that within two weeks thereafter, to wit, on September 24th, he had an accident while driving along the highway from Brawley to El Centro, in that state, which resulted in the car's being overturned and greatly damaged; that on the side of and paralleling the road on which he was driving is the embankment of the Brawley main canal, which is six or eight feet high, and made of earth and other material taken from the canal, and that the highway, according to custom in that valley, consists of two parallel roads, separated by a raised border, so that one side may be flooded in dry seasons without impairing the passibility of the other; that Bir Singh, accompanied by one Golab Singh, was driving in a northeasterly direction from Brawley on the road to the right and next to the embankment, when a car driven by a Japanese on the road to his left came up from the rear, but before overtaking him crossed over to the road on which he was traveling and passed him, and, in order to prevent being run into, he swerved his car, then running about twenty five or thirty miles an hour, slightly to the right. At this point the contentions diverge, appellant claiming that the evidence discloses that when the car swerved to the right it ran "upon and along or over the embankment, and in returning to the highway upset or turned over, and that the injury to the automobile was occasioned by its upsetting or turning over," while appellee contends that the testimony shows that it ran into the embankment, which was rough and almost perpendicular at this point, and was overturned. In other words, it is appellant's position that there was no collision with the embankment, but rather a "running upon and along or over it," resulting in the upsetting and overturning of the car, whereas appellee claims that the automobile did collide with the embankment, and that the collision was the cause of the tip-over.

The court found the fact to be as claimed by appellee, and appellant challenges the sufficiency of the testimony to support this finding, basing its contention upon two letters written by Bir Singh just after the accident and an affidavit signed and sworn to by him on November 9th, thereafter, in which language is used justifying its position. But the version of the accident accepted by the court and relied on by appellee to support its finding is given in the deposition of Bir Singh, and corroborated in certain important particulars by the testimony of several other witnesses who arrived at the scene of the accident shortly after it occurred, and whose depositions describe the condition of the car and the embankment as they appeared at that time. It will serve no useful purpose to give in detail the conflicting testimony on this point; it is sufficient to say that under it the court could have come to either conclusion, that there was or that there was not a collision with the embankment which caused the upset and damage to the car, and the finding would have had substantial support.

The conclusion reached, therefore, is determinative of the insurer's liability, because recovery is sought solely under the provision of the policy rendering the insurance company liable for damage to the automobile "by being in accidental collision . . . with any other . . . object," and necessarily a finding that "the automobile accidentally collided with an embankment of earth, . . . and as a result thereof it was damaged," establishes liability, while a finding that the damage resulted from an upset or tip-over caused by the automobile's being run "upon and along or over" an inclining embankment, as claimed by appellant, would not, according to the authorities, bring the accident among those insured against, for the reason that an upset and collision are not regarded as the same. This question was discussed as follows by the Supreme Court of Wisconsin in Bell v. American Insurance Co., 173 Wis. 533, 14 A.L.R. 179, 181 N.W. 733, where the testimony disclosed that the driver of an automobile was endeavoring to turn his car, and, while doing so, backed it upon soft ground where it gradually settled and tipped over:

"While it is true that insurance contracts should be construed most strongly against the insurer, . . . yet they are subject to the same rules of construction applied to the language of any other contract. It is a fundamental rule [of construction] that the language of a contract is to be accorded its popular and usual significance. It is not permissible to impute an unusual meaning to language used in a contract of insurance any more than to the language of any other contract. The incident causing the damage to the automobile here in question is spoken of in common parlance as an upset or tip-over. If it were the purpose to insure against damage resulting from such an accident, why should not such words, or words of similar import, have been used? We cannot presume that the parties to the contract intended that an upset could be construed as a collision in the absence of a closer association of the two incidents in popular understanding."

To the same effect are the following: Moblad v. Western Indemnity Co., 53 Cal.App. 683, 200 P. 750; Stuht et ux. v. United States Fidelity & Guaranty Co., 89 Wash. 93, 154 P. 137.

However an upset or tip-over resulting in damage may itself be caused by a collision, and, where this is true, the insurer is just as liable under an "accidental collision policy," as though the damage had resulted directly from the collision, because the injury to the car is as much due to...