Barnard v. Houston Fire & Casualty Insurance Co.

81 So. 2d 132, 54 A.L.R. 2d 374, 1955 La. App. LEXIS 882
CourtLouisiana Court of Appeal
DecidedJune 20, 1955
Docket8339
StatusPublished
Cited by12 cases

This text of 81 So. 2d 132 (Barnard v. Houston Fire & Casualty Insurance Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barnard v. Houston Fire & Casualty Insurance Co., 81 So. 2d 132, 54 A.L.R. 2d 374, 1955 La. App. LEXIS 882 (La. Ct. App. 1955).

Opinion

81 So.2d 132 (1955)

L. E. BARNARD, Plaintiff-Appellant,
v.
HOUSTON FIRE & CASUALTY INSURANCE COMPANY, Defendant-Appellee.

No. 8339.

Court of Appeal of Louisiana, Second Circuit.

June 20, 1955.
Rehearing Denied July 8, 1955.
Writ of Certiorari Denied October 4, 1955.

*133 Smallenberger, Eatman & Morgan, Shreveport, for appellant.

Blanchard, Goldstein, Walker & O'Quin, Wilton H. Williams, Jr., Shreveport, for appellee.

AYRES, Judge.

Plaintiff instituted this action, under the coverage afforded by the collision provisions of an automobile insurance policy, to recover of the defendant insurer $1,690 as the net value of a two and one-half ton Ford truck which he alleged was destroyed November 5, 1954, by workmen sawing or cutting a tree onto his truck.

From a judgment sustaining an exception of no cause or right of action, plaintiff appealed.

Plaintiff's contention is that his loss was sustained by a "collision" within the terms, intent and purpose of the insurance contract, whereas defendant's position is that the loss was caused by a "falling object", expressly excluded from the operation or *134 coverage of such provision. Defendant further contends that insurance against loss resulting from a "falling object" would have been afforded plaintiff under the "comprehensive" protection clause of the policy had he procured that coverage.

The question for determination by the court is whether the destruction of plaintiff's truck was caused by a collision, under the collision or upset features of the policy, or whether such damage was caused by a "falling object" and excluded by the effect of the language used in a statement under the "comprehensive" provisions.

The declaration of the contract, Item 3, recites:

"The insurance afforded is only with respect to such and so many of the following coverages as are indicated by special premium charge or charges. The limit of the company's liability against such coverage shall be as stated herein, subject to all the terms of the policy having reference thereto."

Thereafter, the various coverages afforded are listed and numbered from A to J, inclusive. Among those for which premiums were designated is "Coverage E-1, Collision or Upset." The coverage for which no premiums were designated and upon which defendant bases its contention and defense, is "Coverage D, Comprehensive." Under the title "Insuring Agreements", defendant's obligation, subject to the limits of liability, exclusions, conditions and other terms of the policy, is stated to be:

"Coverage E-1—Collision or Upset
"To pay for direct and accidental loss of or damage to the automobile, hereinafter called loss, caused by collision of the automobile with another object or by upset of the automobile, but only for the amount of each such loss in excess of the deductible amount, if any, stated in the declarations as applicable hereto."

The provisions of the aforesaid insuring agreements, upon which defendant relies, read as follows:

"Coverage D—Comprehensive Loss of or Damage to the Automobile, Except by Collision or Upset.
"To pay for any direct and accidental loss of or damage to the automobile, hereinafter called loss, except loss caused by collision of the automobile with another object or by upset of the automobile or by collision of the automobile with a vehicle to which it is attached. Breakage of glass and loss covered by missiles, falling objects, fire, theft, explosion, earthquake, windstorm, hail, water, flood, vandalism, riot or civil commotion shall not be deemed loss caused by collision or upset."

The first matter for determination is whether or not the accident involved may be termed a "collision" within the aforesaid provisions of the insurance policy. In this connection, Blashfield's Cyclopedia of Automobile Law and Practice Vol. 6, Page 286, "Insurance", Sec. 3691, states:

"One common type of automobile insurance policy is that expressly covering damage to the insured car by reason of its being in accidental collision, during the life of the policy with any other automobile, vehicle, or object. The word `collision' in such a policy has its ordinary meaning of striking together or striking against. It includes the case of an automobile striking against another object, alike whether that object be standing or in motion, or regardless of whether both bodies are in motion, or one, no matter which, is stationary, and the other in motion.
"The insured automobile, therefore, if struck, while it is parked or stationary, by another vehicle, is damaged by `collision' with another vehicle or object within the meaning of a clause in the policy purporting either to cover or exclude loss or damage by collision."

In this connection, it was stated in Albritton v. Fireman's Fund Ins. Co., 224 La. 522, 70 So.2d 111, 112-113:

*135 "`Collision', which is generally defined as `the state of having collided', is a word of broad import. The verb `collide' means `to clash'; `to strike or dash against each other'; `to come violently into contact'; `encounter with a shock'. See Webster's New International Dictionary, 2nd Ed., Unabridged and The New Century Dictionary, Vol. I. Thus, the noun `collision', according to lexicographers, is `striking together' or `striking against' and, in construing insurance policies of this sort, many of the courts have applied this definition. See 5 Am.Jur. Verbo `Automobiles', Sec. 555; Annotation in 23 A.L.R.2d 393-426 at page 397 and Blashfield, Cyclopedia of Automobile Law and Practice, Vol. VI, Sec. 3691.
"Hence, it would ordinarily seem to follow that, in policies which insure against collision with other objects without any limitation as to their kind or character, coverage would be provided for any loss incurred by the automobile coming in contact with anything which could be described as an object, irrespective of whether it was a moving or stationary force. Haik v. United States Fidelity & Guaranty Co., 15 La. App. 97, 130 So. 118."

Although there are decisions to the contrary, there is authority for the view that the striking of an insured automobile by an object which falls on it from above may constitute a collision within the coverage of a policy insuring against loss or damage caused by collision, so states 45 C.J.S., Insurance, § 797(5), p. 840. In the Illinois case of Teitelbaum v. St. Louis Fire & Marine Ins. Co., 296 Ill.App. 327, 15 N.E.2d 1013, the facts and the issue to be determined were stated by the court:

"The automobile was parked in a vacant lot adjacent to a building, and the injury and damage to it was caused when a person either jumped or fell from the third story of this building and landed on the automobile. It is agreed that under the terms of the policy upon which the action is predicated, plaintiff is not entitled to recover if the `loss was caused by collision with any other object'. The only controversy between the parties then is whether or not the damage was caused `by collision with another object'. If the incident can be said to have been a collision, plaintiff cannot recover. If it was not a collision, he can recover."

After citing Freiberger v. Globe Indemnity Co., 205 App.Div. 116, 199 N.Y.S.

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Bluebook (online)
81 So. 2d 132, 54 A.L.R. 2d 374, 1955 La. App. LEXIS 882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnard-v-houston-fire-casualty-insurance-co-lactapp-1955.