Terrien v. Pawtucket Mut. Fire Ins. Co.
| Decision Date | 07 March 1950 |
| Citation | 96 N.H. 182,71 A.2d 742 |
| Parties | TERRIEN v. PAWTUCKET MUT. FIRE INS. CO. |
| Court | New Hampshire Supreme Court |
Cotton, Tesreau & Stebbins, Lebanon (Stuart J. Stebbins, orally), for plaintiff.
Buckley, Zopf & Hamlin, Claremont (George E. Zopf, orally), for defendant.
In support of its motions for a nonsuit and directed verdict the defendant relies upon two principal contentions: that the loss suffered by the insured was not an 'accidental' loss; and that the policy was inapplicable by reason of the express provisions of the 'mechanical breakdown' exclusion. The defendant has also asserted that it was error to instruct the jury that the holes or depressions in the highway were 'objects' within the meaning of the collision coverage of the policy. Cf. 5 Appleman on Insurance Law and Practice, §§ 3201-3202. However, it concedes that coverage for damage resulting from the encounter with the holes is afforded under one or the other of the two types of coverage, if such damage was 'accidental' and not within the exclusion which is applicable to both coverages. We may therefore first consider the principal contentions stated above.
No serious difficulty is presented by the argument that the loss was not 'accidental.' It is true that the truck frame had broken on prior occasions. When the truck was first purchased in 1947 it was involved in an accident in which the frame may have been bent. In December of that year, while the truck was being used in logging operations, the frame broke on both sides just ahead of the rear wheels, and was repaired by means of steel plates bolted and welded to the frame. In June 1948 one side of the frame commenced to buckle under the cab and similar repairs were made with the use of a four foot plate. Some ten days later a similar break appeared on the other side, and was repaired. Following the last repair, on July 13 the truck was driven about sixty-five miles to the gravel pit, loaded, and driven out. There were holes in the driveway which, according to the plaintiff's testimony, were six inches to a foot in depth, and could not be avoided, and he testified that the truck 'didn't get very far' after striking them: 'It broke when I hit the last one.' It could be found that the truck travelled only one hundred fifty feet beyond the hole when it collapsed. The break in the frame occurred at the site of the prior breaks under the cab, just ahead of the four foot plate which had been used in repair. While the plaintiff was well aware of the prior breaks and of the repairs which had been made, it does not follow that the damage which occurred on July 13 was not accidental. Other breaks in the frame, ahead of the rear wheels, had been repaired in a similar fashion and the truck was thereafter subjected to heavy use without further mishap. While it could be found that the plaintiff's action in driving his truck over the holes was deliberate, he was not so far chargeable with knowledge that the resulting breakdown was probable, as to require a finding that he deliberately incurred the loss. The collapse of the truck could be found to be an untoward, unusual and unexpected event. What happened was well within the meaning attributed to the word 'accidental' as commonly understood. I Appleman on Insurance Law and Practice, § 391. See Simoneau v. Prudential Ins. Co., 89 N.H. 402, 406, 200 A. 385; Hartford Acc. & Indem. Co. v. Wolbarst, 95 N.H. 40, 42-43, 57 A.2d 151. The loss which occurred to the plaintiff's automobile on July 13 was 'an accidental loss' within the meaning of the policy, which contained no exclusion of loss due to negligent or intentional acts of the insured.
To determine whether the 'mechanical breakdown' exclusion applies, the cause of the loss must first be established. Was the loss caused by a risk covered by the policy, and if so, was it the intention of the parties that the insurer should be liable for such a loss? It is apparent that the weakness of the frame, whether because of the prior breaks or inadequate repairs, was one of the causes of the loss. As a cause, the breaking of the frame was last in point of time to be set in motion, and most closely preceded the resulting damage. Proximity in time is not necessarily controlling, however. 6 Couch, Insurance, § 1466. The encounter with the bumps in the road could also be found to be a cause of the damage. Until they were encountered, the hazard that the frame might break was quiescent. It was a part of the 'set stage.' See Derosier v. New England Telephone & Telegraph Company, 81 N.H. 451, 464, 130 A. 145. It was brought into play by passage over the bumps which set in motion the forces causing the collapse. Which of the two concurring causes was the proximate cause of the loss presented a question of fact for the jury. Prichard v. Boscawen, 78 N.H. 131, 97 A. 563; Derosier v. New England Telephone & Telegraph Company, supra; Roberts v. Hillsborough Mills, 85 N.H. 517, 523, 161 A. 29. The issue was properly submitted, and the verdict of the jury establishes that the bumps in the road were the proximate cause of the hazard which directly produced the loss.
Had the loss resulted solely from the encounter with the bumps no question would be presented concerning the defendant's liability under one or the other of the two coverages afforded by the policy. Since the bumps have been found the proximate cause of the collapse of the frame, the defendant's liability is established, unless the provisions of the exclusion were intended to produce a different result. There is no lack of authority for the proposition that coverage is afforded where an insured risk operates to produce a risk not insured. Fogarty v. Fidelity & Casualty Co., 120 Conn. 296, 180 A. 458. See cases collected in Annotations, 160 A.L.R. 947, 166 A.L.R. 375, 382. See also Note, 32 Minn. Law Rev. 71.
The principle involved may be likened to that applied in cases where the act of a negligent defendant aggravates a preexisting disability of the plaintiff. For the ensuing damage the defendant may be held liable although the consequences of his negligence are enlarged by the weakened condition of the plaintiff. His liability extends not only to expectable results but also to those which are proximately caused thereby, although not normally expectable. Guevin v. Manchester St. Railway, 78 N.H. 289, 299, 99 A. 298, L.R.A.1917C, 410; Kenney v. Wong Len, 81 N.H. 427, 434, 128 A. 343.
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