APPEAL, by permission of the Appellate Term of the Supreme Court in the first judicial department, from a determination of said court, entered June 30, 1954, which affirmed a judgment of the Municipal Court of the City of New York, Borough of Manhattan (DICKENS, J.), entered upon a verdict in favor of plaintiff.
Marshall D. Sweetbaum of counsel (McCarthy &
McGrath, attorneys), for appellant.
Sydney M. Harris for respondent.
Plaintiff, during a heavy rainstorm, drove his car into a puddle of water about fifty feet in length and eight inches in depth. He testified that he was doing about forty to forty-five miles an hour and that the traction of the water pulled his car to the right. He attempted to hold it on the highway, but the car mounted a bank, overturned, and was practically demolished.
Plaintiff was insured for damage to his automobile by defendant insurance carrier under a so-called comprehensive coverage provision in his policy. The clause, so far as pertinent, reads as follows: '(3) To pay for all other loss to the owned automobile, except loss caused by collision between it and another object or by its upset * * *.
Loss caused by missiles, falling objects, explosion, earthquakes, windstorm, hail,
water, flood, vandalism, riot or civil commotion shall not be deemed loss caused by collision or upset' (emphasis supplied).
Suing upon the policy, plaintiff recovered judgment in the amount of $2,026.90 in the Municipal Court after trial by jury.
The key to the theory upon which defendant tried
the lawsuit and prosecutes this appeal is found in the following request to
charge that it made at the trial court, and which in our opinion was properly
refused: 'Attorney for Defendant: If the jury finds that the accident between
the car and the water was a collision, then they should find for the defendant.'
Defendant has always maintained that as a matter of fact and as a matter of law the contact of plaintiff's automobile with the water constituted a collision, which initiated the accident and consequent damages; and that any recovery under the policy is therefore precluded by the sweeping clause excepting loss occasioned by collision from the comprehensive insurance coverage. Defendant cites
Tonkin v. California Ins. Co. (294 N.Y. 326) in support of this contention.
In that case Tonkin had a comprehensive insurance policy containing language almost identical with that of the clause under consideration here. While driving his automobile, he had his vision obscured by a gust of smoke emanating from under the dashboard, which was 'smoking and burning'. His car collided with another vehicle in the roadway, and suffered fire damage amounting to $38 and damage attributable to the subsequent collision in the amount of $477.30. Defendant conceded the fire loss, but disclaimed liability for the collision loss on the
ground that any loss or damage caused by collision was expressly excluded from policy coverage.
The Court of Appeals rejected this contention, stating (p. 329): 'The policy language is definite enough to exclude loss when collision is the primary and exclusive cause, and it would do so here except for the fact that fire--the hazard insured against--was the factor causing the driver to lose control of the vehicle and was so closely associated with it in ...