Wolverine Ins. Co. v. Jack Jordan, Inc.

• Citation: 213 Ga. 299,99 S.E.2d 95
• Decision Date: 10 June 1957
• Docket Number: No. 19712,19712
• Parties: WOLVERINE INSURANCE COMPANY v. JACK JORDAN, Inc.
• Court: Supreme Court of Georgia

Page 95

99 S.E.2d 95

213 Ga. 299

WOLVERINE INSURANCE COMPANY v. JACK JORDAN, Inc.

No. 19712.

Supreme Court of Georgia.

June 10, 1957.

Syllabus by the Court

Where property which was being transported upon the assured's truck extended above the height of the truck and struck an overhead bridge, the loss thus occasioned to the property was not one which is covered by the assured's motor truck cargo insurance policy, which policy covers the assured's liability as carrier, bailee or warehouseman for damage to the insured property caused by specified perils, among which is 'accidental collision of the vehicle with any other vehicle or object.'

Hardin & McCamy, Dalton, for plaintiff in error.

Pittman, Kinney & Pope and H. E. Kinney, Dalton, for defendant in error.

MOBLEY, Justice.

Jack Jordan, Inc., sued Wolverine Insurance Company seeking to recover the amount of a judgment rendered against the plaintiff, plus penalty and attorney's fees for the failure of the company to defend the suit and pay the judgment. The insurance company's general demurrer was overruled by the trial court and the exception is to that judgment.

The judgment obtained against the plaintiff arose out of an incident which occurred when one of the plaintiff's trucks, in hauling some machinery belonging to one of the plaintiff's customers, tried to pass under an overhead bridge on Northside Drive in Atlanta. The machinery being hauled came in contract with the bridge and was damaged. The plaintiff's truck did not strike the bridge or come in contact therewith in any manner; and damage was restricted to the machinery being hauled and was caused by the machinery striking the bridge. The company denied liability and refused to defend the resulting suit against its insured and refused to pay the judgment rendered against the insured.

The insurance policy sued on provides two general types of coverage. Under the scheduled property floater policy, coverage is afforded for damage to the insured's equipment listed therein, consisting of trucks and semitrailers. By an endorsement to the policy, entitled Motor Truck Cargo Insurance, coverage is provided against the insured's liability as carrier, bailee or warehouseman for loss or damage from insured perils to property consisting of 'brick, latex, clay, fertilizer, sand and gravel.' In count 2 of the petition, it is alleged that the plaintiff and the company intended that an endorsement to the policy be issued to include as property insured under the cargo insurance coverage the 'Resaw', which was the property being hauled and which damaged in the instant case.

Under our view of the case, it is necessary to decide only whether the damage to the property being transported resulted from a peril insured against under the policy. The applicable insuring agreement is as follows: 'This policy covers the liability of the assured as carrier, bailee or warehouseman * * * for direct loss or damage, from perils hereinafter specified, * * * on shipment of lawful goods or merchandise (hereinafter called property) * * * while loaded for shipment and in transit in or on vehicles described herein owned and operated by the assured. * * * This policy insures: The assured's liability for loss or damage to property insured hereunder directly caused by: * * * (b) collision, i. e., accidental collision of the vehicle with any other vehicle or object * * *.' The insured contends that the loss resulted from a collision which is covered under the policy. The company contends that the loss is not covered thereunder.

The loss occurred when the property being transported struck an underpass and was damaged. The vehicle transporting the property did not come in contact with the underpass or any other object, and was not damaged in any way. The question presented is one upon which other jurisdictions have reached opposite conclusions respecting liability of the company under practically identical facts.

In Hamilton Trucking Service, Inc. v. Automobile Ins. Co. of Hartford, 39 Wash.2d 688, 237 P.2d 781, 782, the peril insured against was 'accidental collision of the motor truck or trailer with any other automobile, vehicle or object,' and the Supreme Court of Washington held that the policy did not cover damage to a gang saw which extended above the height of the truck and struck an underpass as the truck drove underneath it. In Mendelsohn v. Automobile Ins. Co. of Hartford, 290 Mass. 228, 195 N.E. 104, the policy insured against 'Collision, i.e., accidental collision of the motor truck with any other automobile, vehicle or object,' and damage to a load of merchandise, which extended above the height of the truck on which it was...