Brown v. Union Indemnity Co.

REYNOLDS, J. In this case the question presented for decision is, does the following stipulation in an insurance policy, “caused solely by accidental collision with' another object,” protect the insured from loss when his car tips over and is damaged by coming in contact with the ground or top of the road? This question, so far as we know, has not been decided by the Supreme Court of this state. The question was, however, decided in the negative in July, 1921, in the case of Moblan vs. Western Indemnity Co., 200 Pac. 750, by the Supreme Court of California, and in March, 1921, by the Supreme Court of Wisconsin in the case of J. C. Bell vs. American Insurance Co., 181 Northwestern 733. Each of these cases was well considered and many authorities cited in their support. They have frequently been referred to as stare decisis of the doctrine that the tipping over and striking the ground by an automobile did not constitute an “accidental collision.” On June 21, 1924, in the case of Great American Mut. Indemnity Co. vs. Jones, the Supreme Court of Ohio (144 Northwestern 596), and on June 25, 1924, the Appellate Court of Indiana in the case of Fireman’s Ins. Co. of Newark, N. J., vs. Savery (143 Northeastern 612), the above question was decided in the affirmative. In the first of the last two above mentioned cases, Great American Mut. Indemnity Co. vs. Jones, the first two mentioned cases, Moblad vs. Western Indemnity Co. and Bell vs. American Insurance Co., were fully reviewed. In view of the fact that the California Court and the Wisconsin Court have held that the upsetting of an automobile where the top of the car strikes the ground is not an “accidental collision,” and that the Ohio Court and the Indiana Court have [506] held to the contrary, we have reached the conclusion that the term, “accidental collision,” is ambiguous. At the time that the policy of insurance in this case was written, May 5, 1921, numerous cases were then in the law books, from which it was evident that the meaning of the term, “accidental collision,” as used in insurance policies was not weldefined. In cases similar to this it has been held that the .insured is fully protected. The cases are: Freiberger vs. Globe Indemnity Co., 205 App. Div. 116, 119 N. Y. Supp. 310. Young vs. New Jersey Ins. Co. (D. C.) 286 Fed. 492. Interstate Casualty Co. vs. Stewart, 208 Ala. 377 (94 Sou. 345). Universal Service Co. vs. American Ins. Co., 213 Mich. 523. Rouse vs. St. Paul, etc., Co., 203 Mo. App. 603. Lepman vs. Employers, etc., Corp., 170 Ill. App. 379. Harris vs. American Casualty Co., 83 N. J. Law 641. Hardenburg vs. Employers’ Casualty Co., 78 Misc. Rep. 105. In the following cases the reverse was held. Continental Casualty Co. vs. Paul, 94 Southern 614. Southern Casualty Co. vs. Johnson, 24 Ariz. 221. Moblad vs. Western Indemnity Co., 63 Cal. App. 683. Bell vs. American Ins. Co., 173 Wisc. 533. Fox vs. Interstate Exchange, 195 Northwestern 842. Lester V. Alexander vs. Home Ins. Co., Syllabus No. 1451, Sup. Court of Hawaii. Royal Hawaiian Sales Co. vs. Home Ins. Co., Syllabus No. 1449, Sup. Court of Hawaii. Wettengell vs. U. S. “Lloyds,” 157 Wisc. 433. Gibson vs. Georgia Life Ins. Co., 17 Ga. App. 43. In view of these conflicting authorities we have reached the opinion that, under the well-settled doctrine, “an insurance policy which contains language reasonably susceptible of different interpretations will be given the construction most favorable to the assured,” the plaintiff’s petition sets forth a cause of action. It is therefore ordered, adjudged and decreed that the judgment of the lower court be reversed and that the exception of no cause of action be overruled. It is further ordered, adjudged and decreed that this case be remanded to the lower court to be proceeded with according to law. Costs of the appeal to be paid by appellee. The other costs to await the final decision in this case.