Great Eastern Casualty Co. v. Solinsky

150 Tenn. 206
CourtTennessee Supreme Court
DecidedDecember 15, 1923
StatusPublished
Cited by16 cases

This text of 150 Tenn. 206 (Great Eastern Casualty Co. v. Solinsky) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Great Eastern Casualty Co. v. Solinsky, 150 Tenn. 206 (Tenn. 1923).

Opinion

MR. Justice McKinney

delivered the opinion of the Court.

For a statement of the case we quote from the brief of defendants in error as follows:

“Responding to what was thought to he a signal light to stop at a railroad crossing the driver of the Cadillac Suburban automobile of defendants in error suddenly applied the brakes. At the time of the accidental collision the machine was traveling at the rate of thirty to thirty-five miles per hour on the Nolensville Pike. The scene of the accident was in Davidson county, but some distance outside of the corporate limits of the city of Nashville. The Nolensville Pike had been oiled and loose gravel spread upon the roadbed.
“Upon the application of the brakes the machine skidded, swerving and reversing its position. The right rear wheel of the automobile collapsed, and the vehicle was precipitated on its right side upon the roadbed. It was a new automobile, and at the time of the collision had been driven only about nine hundred miles. The amount [208]*208of damages sustained by the defendants in error resulting from this collision is agreed to be $1,917.83.
“The Great Eastern Casualty Company had issued a policy to defendant in error Mrs. Solinsky, insuring her against three distinct risks; namely, first, against injuries to persons; second, injuries to property of others than hers; and, thirdly, against damage to assured’s own automobile. ’
‘ ‘ The contract of insurance was taken over by the co-plaintiff in error, Union Indemnity Company, which assumed all liability that might arise under said policy.
“The total premium charged and paid for the entire coverage was $198.73, and was specifically apportioned as follows: $40.31 was charged for insurance against damage to persons, not to exceed, however, $20,000; $12.42 was demanded for insurance against injuring property of others; and, third, $146 was exacted for insurance covering 'damage to assured’s own automobile.’
“It is the third and most expensive class of coverage that is involved in this proceeding, and the language defining the risk is as follows:
“ ‘Damage to Assured’s Own Automobile.
‘ ‘ ‘ III. To indemnify the assured against loss by reason of damage to or destruction of any automobile described in said declarations, including its operating equipment, if caused solely by collision with another object either moving or stationary, excluding however, damage or destruction by fire from any cause whatsoever; and excluding loss or damage to any tire due to puncture, cut, gash, blow-out or other ordinary tire trouble; and excluding in any event loss or damage of any tire unless caused in an accidental collision which also causes other loss or damage to the insured automobile.’ ”

[209]*209The defendants in error recovered a judgment in the circuit court for the sum sued for, which judgment was affirmed by the court of civil appeals.

The principal question involved is, Was the damage sustained due to a “collision” within the meaning of the policy?

The plaintiffs in error have cited seven decisions from other jurisdictions, which, in our opinion, support their contention, and which we will review in a brief manner.

The first case is that of Bell v. American Insurance Co., 173 Wis., 533, 181 N. W., 733, 14 A. L. R., 180. This was a case in which an automobile tipped over and was damaged. The policy insured the plaintiff against damage resulting to his automobile “by being in accidental collision during the period insured with any other automobile, vehicle or object.” The court said:

“With the definitions of lexicographers as a basis, it is easy to demonstrate that the incident resulting in damage to plaintiff’s automobile constituted a collision. Thus: ‘A collision is the “meeting and mutual striking or dashing of two or more moving bodies, or of a moving body with a stationary one. ’ ’ Century Dictionary. ‘ Object” is defined to be “that which is put, or which may be regarded as put, in the way of some of the senses, something visible or tangible.” Webster’s Dictionary. An automobile is an object. Upon the overturning of an automobile, its forcible contact with the earth constitutes a “ mutual striking or dashing of a moving body with a statutory one.” Hence the forcible contact of the automobile with the earth, on the occasion of the upset, constituted a collision.’
[210]*210“Upon its face this appears to be good logic, but the conclusion is neither convincing nor satisfying. One instinctively -withholds assent to the result. The reason is that it makes a novel and unusual use and application of the word ‘collision.’ We do not speak of falling bodies as colliding with the earth. In common parlance the apple falls to the ground; it does not collide with the earth. So with all falling bodies. We speak of the descent as a fall, not a collision. In popular understanding a collision does not result, we think, from the force of gravity alone. Such an application of the term lacks the support of ‘widespread and frequent usage.’

“While it is true that insurance contracts should be construed most strongly against the insurer (French v. Fidelity & C. Co., 135 Wis., 259, 17 L. R. A. [N. S.], 1011 115 N. W., 869; Kelly v. Fidelity Mut. L. Ins. Co., 169 Wis., 274, 4 A. L. R., 845, 172 N. W., 152), yet they are subject to the same rules of construction applied to the language of any other contract. It is a fundamental rule that the language of a contract is to be accorded its popular and usual significance. It is not permissible to impute an unusual meaning to language used in a contract of insurance, any more than to the language of any other contract. The incident causing the damage to the automobile here in question is spoken of in common parlance as an upset, or ‘tipover.’ If it were the purpose to insure against damage resulting from such an incident, why should not such words, or words of similar import, have been used? We cannot presume that the parties to the# contract intended that an upset should be construed as a collision, in the absence of a closer association of the two incidents in popular understanding.”

[211]*211In New Jersey Insurance Co. v. Young, 290 Fed., 155, decided by the circuit court of appeals, Ninth Circuit, June 18, 1923, the policy covered “accidental collision during the period insured with another automobile, vehicle, or object, excluding loss or damage to any tire due to puncture, ... or other ordinary tire trouble, and excluding in any event loss or damage to any tire, unless caused in an accidental collision.” The court said:

“Ve are unable to construe the word ‘collision’ as including damage caused by the striking of the car upon the roadway after the defective axle broke and let the car down. The automobile was being driven upon the highway. It did not come in contact with any object upon the road or roadway until after the defective axle broke, when the car dropped and the end of the broken axle plowed into the roadway itself, and the car, pivoting on the broken axle, turned over and was damaged.

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Bluebook (online)
150 Tenn. 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/great-eastern-casualty-co-v-solinsky-tenn-1923.