Opinion
No. 3150.
January 21, 1954. Rehearing Denied February 4, 1954.
Appeal from the County Court at Law, McLennan County, Nash Oliver, J.
Thompson Coe, R. B. Cousins, III, Dallas, for appellant.
Corsbie, Koehne, Jones, Fulbright Ponder, Waco, for appellee.
This suit is based upon an automobile policy, insuring against damage by collision, and was submitted on stipulated facts.
On April 20, 1953, appellant issued to appellee an insurance policy which provided that appellant would pay for direct and accidental loss or damage to appellee's automobile caused by collision of the automobile with another object or by upset of the automobile, less a $50 deductible amount. Thereafter, on May 11, 1953, a tornado or windstorm struck Waco, Texas, on which date appellee's automobile was parked near 217 Jackson St. in Waco, Texas, no person being in such automobile. As a direct and proximate result of said tornado or windstorm, brick, plaster, wood, gravel and other debris fell and was blown upon appellee's automobile, causing damage to the extent of $535.26.
The only insurance coverage contended for by appellee is under Section B-1 of the policy, which is: 'Collision or Upset: Direct and accidental loss of or damage to the automobile 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'. * * * (which was $50).
The appellant Insurance Company denied liability on the policy and appellee filed suit. The case was tried by the court without a jury, which rendered judgment for the appellee for $485.26.
Appellant appeals to this court, contending that the damage sustained by appellee's automobile under the stipulated facts was not by reason of a collision within the meaning of the policy.
The sole question to be answered, therefore, is: Whether a stationary vehicle damaged by falling debris from a building damaged by a tornado, is such damage or loss as is contemplated by an insurance policy insuring against damage or loss to an automobile in collision with another object.
It is our view that Providence Washington Ins. Co. v. Proffitt, 239 S.W.2d 379, 382, recently decided by our Supreme Court, is determinative of this question, and that it answers same in the affirmative. In that case the insured had only collision coverage as in the case at bar. The question was whether the force of flood waters against a stationary automobile was a collision. The court therein defines the noun 'collision' as is contained in the Century Dictionary and Encyclopedia as follows: 'The meeting and mutual striking or clashing of two or more moving bodies, or of a moving body with a stationary one'; and held that it was a collision within the meaning of the policy.
In that case it was contended, as appellant contends in the case at bar, that had appellee desired to have coverage against floods, falling debris, etc., he could have purchased it under Comprehensive Coverage, which in the case at bar was Coverage A and provided: 'Comprehensive-Loss of or Damage to the Automobile, Except by Collision or Upset: Any direct and accidental loss of or damage to the automobile 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 caused 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.' (There is no deductible amount in connection with this coverage.)
In the Proffitt case, supra, our Supreme Court held: 'The provision of Coverage A that 'Breakage of glass and loss caused by missiles, falling objects, fire, theft, explosion, earthquake, windstorm, hail, water, flood * * * shall not be deemed loss caused by collision or upset' cannot be used to defeat a recovery under Coverage B-1. The obvious purpose of this provision was to enlarge the liability of petitioner under Coverage A and was not to restrict the liability of petitioner under Coverage B-1. To those who pay for Coverage A petitioner obligated itself to pay for all loss or damage to the automobile except loss or damage caused by collision or upset. By the quoted language it then removed any possibility of defeating recovery for loss or damage resulting from the causes named * * *. If petitioner had intended the language used in the last sentence of Coverage A (enlarging its liability under that coverage) to be used also to restrict its liability under Coverage B-1, the same language would have been written into Coverage B-1 as a limitation of liability. It is a settled rule in this state that policies of insurance will be interpreted and construed liberally in favor of the insured and strictly against the insurer.'
Applying the law announced to the facts in the case at bar-and ascribing to the word 'collision' its ordinarily accepted, as well as its legal meaning as announced by our Supreme Court, we hold that the damage to the appellee's automobile was caused by a collision within the meaning of the policy issued by appellant. See U.S. Ins. Co. v. Boyer, Tex.Civ.App., 264 S.W.2d 151.
The judgment of the Trial Court is therefore affirmed.
HALE, J., did not participate in the disposition of this case because of disqualification.