Stuht v. U.S. Fidelity & Guaranty Co.

• Decision Date: 06 January 1916
• Docket Number: 12852.
• Citation: 89 Wash. 93,154 P. 137
• Court: Washington Supreme Court
• Parties: STUHT et ux. v. UNITED STATES FIDELITY & GUARANTY CO.

154 P. 137

89 Wash. 93

STUHT et ux. v. UNITED STATES FIDELITY & GUARANTY CO.

No. 12852.

Supreme Court of Washington

January 6, 1916

Department 1. Appeal from Superior Court, King County; A. W. Frater Judge.

Action by H. C. Stuht and wife against the United States Fidelity &amp Guaranty Company. From a judgment for plaintiffs, defendant appeals. Reversed, and cause ordered dismissed.

Shepard Burkheimer & Burkheimer, of Seattle, for appellant.

Vince H. Faben, of Seattle, for respondents.

MOUNT, J.

This is an action upon a policy of automobile insurance. The complaint, after setting out the terms of the policy, alleged that on August 9, 1913, the insured automobile was wrecked and destroyed through a collision between the automobile and the wooden planking constituting a portion of the sluice box at the side of the roadway and projecting into the highway and by striking and colliding with a tree near the roadway, and striking violently the ground near the roadway then being traveled by the machine, to the damage of the plaintiff in the sum of $1,000. The amended answer of the defendant admitted the issuance of the policy, but denied all the other allegations of the complaint, and alleged two affirmative defenses, which it will not be necessary to notice. The case was tried to the court and a jury. At the conclusion of the plaintiff's evidence, the defendant moved the court for a directed verdict, and again made the same motion at the close of all the evidence. Finally, after a verdict was returned by the jury, a motion was made for judgment notwithstanding the verdict. These motions were all denied, and a judgment was entered upon the verdict. The defendant had appealed.

We are satisfied that these motions should have been granted. The policy sued upon insures the plaintiffs against damage to his automobile----

'if caused solely by collision with another object, either moving or stationary (excluding, however, all loss or damage by fire from any cause whatsoever; all loss or damage caused by striking any portion of the roadbed, or by striking street or steam railway rails or ties; and all loss or damage caused by the upset of the injured automobile unless such upset is a direct result of such a collision as is covered hereby).'

The evidence for the plaintiff shows that the automobile in question had been taken to a repair shop to have some repairs made thereon. After the repairs had been made, the mechanician took the automobile and started to deliver it to the owner. He testified that he did not go directly to the garage of the owner, but went in a roundabout way, intending first to go to his home, and from thence to take the car to the owner. He was the only witness who testified for the plaintiff as to the manner of the damage to the car. He testified upon that question as follows:

'In the month of August. It was between 7 and 8 o'clock some time; it was after the sun, I think, was down. Well, anyhow, it must have been along about that time; I don't remember exactly. * * * Well I was going west, or east, I should say, on Norman street; this was between--I passed Thirteenth avenue; from Thirteenth it is quite a little steep grade down to Fourteenth. Fourteenth is the end of Norman street; it ends there. I think about the middle of the block some one crossed the street in front of me, and I turned in close to the curb on the right-hand side. When I came to Fourteenth, it is very narrow. Fourteenth avenue is very narrow at that point, and in making the turn--I couldn't make the turn in the street, and I went out where the sidewalk strip should be. Of course, I knew I was getting dangerously

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