Annotate this Case

121 S.E.2d 716 (1961)

255 N.C. 360


No. 96.

Supreme Court of North Carolina.

September 27, 1961.

*718 Harvey Hamilton, Jr., and George W. Ball, Morehead City, for plaintiff, appellee.

C. R. Wheatly, Jr., and Thomas S. Bennett, Beaufort, for defendant, appellant.

BOBBITT, Justice.

Defendant's assignment of error, directed to the court's denial of his motion for an order requiring the plaintiff to make the allegations of his complaint more definite and certain, is without merit. Such an order, under G.S. § 1-153, is to enable the movant to prepare his defense. Such a motion may not be made after judgment.

Defendant's motion captioned, "Motion In Arrest Of Judgment," is in fact a motion to vacate the judgment by default and inquiry on the ground the complaint fails to allege facts sufficient to constitute a cause of action and therefore will not support such judgment.

In Presnell v. Beshears, 227 N.C. 279, 41 S.E.2d 835, 836, in passing upon a like motion, this Court, in opinion by Devin, J. (later C. J.), said: "The effect of the failure of the defendants to appear in response to the summons and complaint personally served upon them was to establish pro confesso in the plaintiff a right of action of the kind properly pleaded in the complaint and thereupon the plaintiff became entitled as a matter of law to recover on the cause of action set out in his complaint. G.S. § 1-212; DeHoff v. Black, 206 N.C. 687, 175 S.E. 179; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67. Defendants' failure to answer, however, admitted only the averments in the complaint and did not preclude them from showing, if they could, on this motion, that such averments were insufficient to warrant recovery. Beard v. Sovereign Lodge, W. O. W., 184 N.C. 154, 113 S.E. 661; Strickland v. Shearon, 193 N.C. 599, 604, 137 S.E. 803. Hence they were entitled to have the judgment vacated if the facts set out in the complaint should be determined to be insufficient to constitute a cause of action, as there would then be no basis upon which the default judgment could be predicated."

As stated in Judge Cowper's judgment, this Court, on former appeal, did not consider a demurrer ore tenus to the complaint. Indeed, nothing in our records indicates defendant (then appellee) filed such demurrer in this Court although its brief contained references to such demurrer and arguments and citations in support thereof. Be that as it may, the complaint is now challenged on the ground it does not allege facts sufficient to state a cause of action; and the rules for testing its sufficiency are the same whether this challenge be by demurrer, Howze v. McCall, 249 N.C. 250, 106 S.E.2d 236, or by motion to set aside the judgment by default and inquiry, Presnell v. Beshears, supra.

"Unless there are special limitations in a policy insuring against loss of, or damage to, an automobile caused by accidental collision, the coverage extends to all losses caused by accidental collision however occasioned, and such a policy does not usually exclude damage caused by negligence." 45 C.J.S. Insurance § 798a.

"A collision clause is strongly construed against the insurer upon the basis that, if it desired to insert exceptions precluding liability under the circumstances presented, it should have done so by inserting such exceptions as would limit the effect of the general terms employed." Appleman, Insurance Law and Practice, § 7465.

The foregoing general statements are quoted, in whole or in part, by Denny, J., in Suttles v. Blue Ridge Insurance Co., 238 N.C. 539, 78 S.E.2d 246.

In Hallock v. American Casualty Co., 207 N.C. 195, 176 S.E. 241, 243, the policy provided for the payment of loss "if caused solely by Accidental collision with another object either moving or stationary." A chauffeur, operating plaintiff's automobile, ran off the road and down a bank into bottom land, where the automobile turned *719 over on its side. Judgment for the plaintiff was affirmed by this Court.

In Hallock, defendant contends, the plaintiff's pleading and evidence revealed that the automobile collided "with an object." Defendant refers to the bank as the object with which the automobile collided. (Consideration of the evidence in Hallock indicates the collision causing the damage occurred when the automobile struck the bottom land and turned over.) Be that as it may, defendant is correct in its contention that the question, whether water is "an object" within the meaning of the collision clause, was not presented or discussed in Hallock. This question is one of first impression in this jurisdiction.

In 45 C.J.S. Insurance § 797b(1), it is stated: "There cannot be a collision within the coverage of a policy insuring an automobile against loss or damage from collision without the presence of an object with which to collide. Where the risk designated in such a policy is collision with an object, in general the word `object' is used in its ordinary and usually accepted sense as meaning anything tangible or visible. Since the phrase `being in collision with an object,' as commonly used in such policies, is of so general an import, any effort to classify the objects with which a car may collide is futile, and it has been laid down broadly that, in the absence of a restriction as to the kind of object, a collision may occur with any object."

In Sunderlin on Automobile Insurance, § 711, the author states: "Water and land are objectsphysical objects. They are not abstract or imaginary, but tangible, visible, concrete, and real, and may be perceived and apprehended by the mind. The understanding has knowledge of them. An insured automobile which runs into either water or land collides with an `object.'" The clear weight of authority supports this oft-quoted statement. Harris v. American Casualty Co., 83 N.J.L. 641, 85 A. 194, 44 L.R.A.,N.S., 70; Gans v. Columbia Ins. Co., 99 N.J.L. 44, 123 A. 240; Columbia Ins. Co., Jersey City, N. J. v. Chatterjee, 93 Okl. 249, 219 P. 102; Tinker v. Boston Ins. Co., 106 Okl. 206, 233 P. 1058; Ringo v. Automobile Ins. Co., 143 Or. 420, 22 P.2d 887; Long v. Royal Ins. Co., 180 Wash. 360, 40 P.2d 132, 105 A.L.R. 1423; Providence Washington Ins. Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379; Washington Fire & Marine Ins. Company v. Ryburn, 228 Ark. 930, 311 S.W.2d 302; Appleton, op. cit., § 3205; 45 C.J.S. Insurance § 797b(2).

In Ringo v. Automobile Ins. Co., supra [143 Or. 420, 22 P.2d 889], the policy provided coverage against "(d)irect loss or damage to the automobile described, caused solely by accidental collision with another object or by upset." Plaintiff, while driving his automobile along the highway struck "something," which caused his car to skid and strike a bank and go over the bank into a river. The defendant contended the damage to the insured automobile caused by being plunged into the river did not come within the coverage of the policy. The opinion of Justice Bailey, after reviewing prior decisions, concludes: "There was, within the meaning of the policy, a direct loss or damage to plaintiff's automobile caused solely by accidental collision with another object. Plaintiff testified positively that the car, while being driven along the highway, struck some object other than the roadbed. Even disregarding this evidence, the proof is that the car plunged into the waters of the Yamhill river and sank to the bottom of that stream. The incident of coming into contact with the water and the bed of the stream constituted a collision with another object."

In Washington Fire & Marine Ins. Company v. Ryburn, supra [228 Ark. 930, 311 S.W.2d 304], the policy provided coverage against "(d)irect and accidental loss of or damage to the automobile caused by collision of the automobile with another object or by upset of the automobile." Plaintiff's employee, while driving the insured truck along the highway, "encountered a *720 slick place in the roadway, lost control of the truck, careened off the highway, hit a knoll causing the truck to bounce, went down an embankment and plunged into a ditch filled with water." Water damage to the motor constituted the major element of damages. It was held "that the damages to the truck here were caused by a collision of the truck `with another object' here, the water in the ditch." The opinion of Judge Holt states: "Had the appellant intended to limit the extent of its above coverage when a collision occurred `with another object' it could easily have done so in unmistakable language."

In Harris v. American Casualty Co., supra [83 N.J. 641, 85 A. 195], the policy provided coverage against loss "resulting solely from collision with any moving or stationary object; (excluding however) * * * (c) damage resulting from collision due wholly or in part to upsets." Plaintiff's automobile was being driven by his chauffeur over a highway bridge. It crashed through a guard rail and was precipitated into the stream below. Collision with the guard rail caused only nominal damages. Water damage constituted a major element of damages. It was held that plaintiff's damages were caused by collision, not by upset; and that the automobile collided with a moving object, namely, the water of the stream, and with a stationary object, namely, the bed of the stream under the water.

We have examined carefully each of the cases cited by defendant, to wit, Liverpool & London & Globe Ins. Co. v. Jones, 207 Ark. 237, 180 S.W.2d 519; Snare & Triest Co. v. Fireman's Fund Ins. Co., 2 Cir., 261 F. 777; Aetna Casualty & Surety Co. v. Cartmel, 87 Fla. 495, 100 So. 802, 35 A.L.R. 1013; City Coal & Supply Co. v. American Automobile Ins. Co., Ohio Com.Pl., Mahoning County, 128 N.E.2d 264; Albritton v. Fireman's Fund Ins. Co., La.App., 61 So. 2d 615; Unkelsbee v. Homestead Fire Ins. Co., D.C.Mun.App., 41 A.2d 168. An analysis of the factual situation and questions presented in each of these cases is deemed unnecessary. Suffice to say, each involves a factual situation different from that here considered and none is regarded as authority for decision on this appeal.

When plaintiff's automobile rolled into and struck the water of the canal and the bottom of the canal as alleged by plaintiff, in our opinion, and we so decide, this constituted a collision of the automobile with another object within the meaning of the alleged provision of the policy. Since this entitled plaintiff to recover for loss by collision with another object, we need not consider whether plaintiff's allegations are sufficient to support recovery on the ground of "upset."

We have not overlooked defendant's contention that the facts pleaded by plaintiff do not show an accidental collision. In this connection, it is first noted that the word "accidental" is not used in plaintiff's allegations relating to coverage. True, plaintiff did not allege what caused his automobile to roll into the canal. But, when construed in the light most favorable to plaintiff, the allegations clearly imply that this event was neither intended nor foreseen, and that what defendant refers to as "an unexplained occurrence" was an accident within the meaning of that term as defined by this Court in Kirkley v. Merrimack Fire Insurance Co., 232 N.C. 292, 59 S.E.2d 629.

In St. Paul Fire & Marine Ins. Co. v. American Compounding Co., 211 Ala. 593, 100 So. 904, 906, 35 A.L.R. 1018, it was held, on rehearing, as stated in the first A.L.R. headnote: "The striking of the ground at the bottom of the declivity by an automobile falling over a precipice at the side of the road after it has started by the force of gravity when left standing on an inclined roadway is a collision within the meaning of a policy insuring against damage by accidental collision with any other automobile, vehicle, or object." The following excerpt from the opinion of Bouldin, J., is pertinent:

*721 "A collision implies an impact, the sudden contact of a moving body with an obstruction in its line of motion. Both bodies may be in motion, or one in motion and the other stationary. Clearly it matters not whether the car or the other object is in motion. The clause here involved covers all accidental collisions, save those arising from certain extrahazardous uses. In the nature of things, no effort is made to enumerate the accidental collisions covered thereby. No particular kind of accident is in the contemplation of the parties. The peril insured against is the unforeseen accident; otherwise, there is no accident in the true sense. Neither is there any limitation as to cause of the accidental collision. The force leading thereto may be applied by human agency, or it may be a natural force, to which all our actions and dealings are related. A car, standing on a grade, is usually held in place by the friction of the wheels on the ground. This friction is maintained by brakes. If the brake does not hold, the car starts and proceeds down grade with accelerated velocity until arrested by collision or otherwise. The sole force in operation is the force of gravity, an ever present agency, and a continuing peril to a car. "An automobile started by an external force, or by force of gravity on failure of the brakes to hold, and running uncontrolled against any object in its path, is in collision with such object."

The conclusion reached is that the facts stated in the complaint are sufficient to constitute a cause of action and therefore sufficient to support the judgment by default and inquiry. Hence, the judgment of Judge Cowper, denying defendant's motion to vacate the judgment by default and inquiry, is affirmed.