Opinion
35478.
DECIDED MARCH 17, 1955.
Action on automobile policy. Before Judge Parker. Fulton Civil Court. October 18, 1954.
J. Ralph McClelland, Jr., pro se.
Troutman, Sams, Schroder Lockerman, Dan MacDougald, contra.
1. Special ground 1 of the motion for new trial, complaining that the trial court erred in allowing an amendment to the defendant's answer, after the conclusion of the evidence, was not error for any reason assigned.
2. The remaining grounds of the motion for new trial, complaining of several excerpts from the charge of the court, are without merit for any reasons assigned, as shown in the opinion.
3. The evidence authorized the verdict for the defendant.
DECIDED MARCH 17, 1955.
Ralph McClelland brought an action in the Civil Court of Fulton County against Northwestern Fire Marine Insurance Company, for damages alleged to have been sustained to the plaintiff's automobile as the result of a windstorm. The defendant had written an insurance policy covering the plaintiff's automobile for damages to it resulting from "windstorm."
There was a stipulation of facts entered into between the parties, the pertinent parts of such stipulation being as follows: On February 22, 1953 the plaintiff's automobile, while parked in his carport, at about 7:10 p. m., rolled out of the carport and down the driveway toward the street, sideswiping one tree and crashing into another tree and doing $625.21 damage to the car. The plaintiff had parked the car in the carport at approximately 3:30 p. m. on this same day, and had gotten into the car at approximately 5:30 p. m. to use it, but it would not start, and therefore the plaintiff did not move the car at that time. Later at approximately 6:45 or 7 p. m., on the same day, the plaintiff's oldest child had gotten into the car to get a toy, but the child did not in any way touch the mechanism of the automobile in getting the toy. It was further stipulated that a wind of between 18 to 21 miles per hour could vibrate and set a car such as the plaintiff's in motion. According to an exhibit, made a part of the stipulation of fact, the wind at the approximate time the car rolled down the driveway was blowing at 21 miles per hour at the Atlanta Municipal Airport. The wind velocity in the carport would be greater than that in the surrounding area, due to the topography of the surrounding terrain. According to another exhibit, made a part of the stipulation of facts, the floor of the carport had a grade of 3.5% in the direction that the car rolled, and the driveway which the car rolled down had grades of from 13.3% in some places to 21% in other places. The company admitted that the policy in force covered loss caused by windstorm, and that loss caused by windstorm shall not be deemed to be loss by collision. It was further stipulated that the question for the jury and for the court is whether, under the facts stipulated and others which the parties may present, the damages to the plaintiff's car were occasioned by windstorm within the meaning of the term as used in the policy, the meaning of which was not defined in the policy. The defendant in its answer denied that the cause of the damage to the plaintiff's automobile was "windstorm." On the trial of the case the stipulation of facts was read to the jury and later introduced into evidence without objection, as was the insurance policy. The plaintiff testified in his own behalf as to the wind on the day in question; that later he had, on more than one occasion, parked his car as it was parked on the day when the damage occurred, leaving the car's gears in neutral and the brakes disengaged; and that the car did not roll down the driveway. He further testified that he was without his automobile for 27 days while it was being repaired, and that the value of it was $5 per day, or a total of $135. After the evidence in the case had been presented, the defendant filed an amendment to its answer, over the objection of the plaintiff, in which it pointed out that the policy itself provides that the defendant shall not be liable for damages caused by mechanical failure unless the mechanical failure was caused by one of the perils covered by the policy; and then alleged that the cause of the automobile going down the driveway was either because the brakes on the automobile failed or the plaintiff had failed to set the brakes properly. After the judge charged the jury, they returned a verdict for the defendant. The plaintiff made a motion for new trial on the general grounds, which was later amended to include five special grounds. This motion was denied, and the plaintiff excepted.
1. After the conclusion of the evidence, the defendant tendered an amendment to its answer in which it was alleged in paragraph 1 that the policy provided that the defendant would not be liable for any damage caused by a mechanical failure unless the mechanical failure itself was caused by one or more of the perils covered by the policy, and then alleged in paragraph 2 that the cause of the car going down the driveway was either the failure of the brakes to properly hold the car, or the failure of the plaintiff to properly apply the brakes. This amendment was allowed by the court over the plaintiff's objection that it was not germane to and not supported by any evidence, and was prejudicial because it injected conjectural matter, inferences and conclusions which could not be drawn from any of the evidence. In special ground 1 of the motion for new trial, complaint is made that, because of the objections urged, the court erred in allowing the amendment. Since the insurance contract was in evidence and contained the provisions mentioned in the first paragraph of the amendment, there is no merit in the objection made to this paragraph. Hyer v. C. E. Holmes Co., 12 Ga. App. 837, 848 ( 79 S.E. 58). In the second paragraph, the defendant alleged what it conceived to be the cause of the descent of the car. Since this court will take judicial cognizance of the fact that efficient and effective brakes will hold a motor vehicle on an incline unless some external force be applied, the allegation in paragraph 2 of the amendment was authorized under this principle of law. The presumption would be that, if the brakes were efficient and would hold the car on the incline unless some external force was exerted, its descent was caused either by the wind or because the brakes were not properly set. Accordingly, the defendant had the right to contend that either the brakes failed or were improperly set by the plaintiff. See Georgia Highway Express v. Sturkie, 62 Ga. App. 741, 746 ( 9 S.E.2d 683); Scoggins v. Peggy Ann of Ga., 87 Ga. App. 19, 23 ( 73 S.E.2d 79); Wright Contracting Co. v. Waller, 89 Ga. App. 827, 833 ( 81 S.E.2d 541).
2. The remaining grounds of the motion for new trial complain of several excerpts from the charge of the court, which involve objections that are controlled adversely to the movant by the ruling in the preceding division of this opinion; and also an objection that in some of the excerpts the court expressed an opinion on the facts of the case, which objection is also without merit.
3. The evidence authorized the verdict for the defendant.
Judgment affirmed. Quillian, J., concurs. Felton, C. J., concurs specially.
In such a policy as we have in this case, where the parties have not defined the word "windstorm," several courts have defined the word to mean "a wind of sufficient violence to be capable of damaging the insured property, either by its own unaided action, or by projecting some object against it; that is to say, that any wind that is of such extraordinary force and violence as to thereby injuriously disturb the ordinary condition of the things insured, is tumultuous in character, and is to be deemed a `windstorm' within the purview of the policy in the absence of a provision therein to the contrary." Adams Apple Prod. Corp. v. National Union Fire Ins. Co. of Pittsburgh, 170 Pa. Super. 269 (2, 3) ( 85 A.2d 702); Gerhard v. Travelers Fire Ins. Co., 246 Wis. 625 ( 18 N.W.2d 336, 337); Fidelity-Phenix Fire Ins. Co. of N. Y. v. Bd. of Ed. of Town of Rosedale, 201 Okl. 250 ( 204 P.2d 982, 985); and see Ohio Hardware Mutual Ins. Co. v. Sparks, 57 Ga. App. 830, 832 ( 196 S.E. 915). Under such a definition, the jury was compelled to find that an automobile left parked on a 3.5% grade in the direction in which it moved, unbraked and out of gear, was not in an ordinary condition. The least the word "windstorm" could mean, in my opinion, would be a wind capable of moving an automobile parked on a level, unbraked and out of gear, in which event the act of the owner in leaving the car unbraked and out of gear would not militate against him. Since there was no evidence whatever that the wind in this case was strong enough to move an automobile parked on a level, unbraked and out of gear, and since there was evidence that the United States Weather Bureau classified an 18 to 23 mile an hour wind as a "moderate breeze," the verdict for the defendant was demanded. The basic question is what is a windstorm? If there was no windstorm, there could be no recovery whatever the facts showed otherwise. The fact that proof of a windstorm would authorize a recovery by the plaintiff despite the negligence of the plaintiff does not mean that proof of a wind less than a windstorm would authorize a recovery if the damage would not have occurred but for the negligence of the plaintiff. In other words, if the evidence shows damage from a hazard insured against, the negligence of the plaintiff does not defeat recovery. If the evidence does not show damage from a hazard insured against, there can be no liability even if the damage would not have occurred in the absence of the hazard which was not insured against. So, in this case, if the car would not have rolled down the driveway but for the wind, and the wind did not rise to the degree of intensity of a windstorm, no recovery could be had. Since the evidence demands a finding that a wind not amounting to a windstorm started the automobile in motion and a verdict for the defendant was demanded, the alleged errors of the court in the particulars complained of were harmless.