
    FRANK J. CALDERONE VS AMERICAN AUTOMOBILE INSURANCE CO.
    NO. 8634
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE.
    APRIL 16, 1923.
   BY: WILLIAM A. BELL, Judge

seeks. reop.véyy ín'thé sum of 1,1869.26 from ■ ^í<a^^t../insttr*noo/oo^*i^ tmder.apoliay, oovoring loss,- or damage .l^kjjefcehik* ty “pollisipn-with' any -other automobile, vohiolt or l^íió^NSho/kishSi of,/th*.*eoiaont:.and--,extent .of-the damages sustained ^jagSflaÉtk^feK-iáHiti in dlatote.r ;.<6h* otose as finally alleged in plain-aM-'an^iomoiitol petition,.is/ópílislon- of his oar- with a rut g|||eet,;tr;/roaí.-bed ever whipa no was traveling. Defendant denies’ if|^^as;fát.ph a. collision,with suph an object, and'avers that'

.appeared.to he, proven as .the-cause of,.the aooidont, i,P||^J^'Ve4pajlÍé.d ooll'ision is not suoh which oonstitutós’a oollis^tjfphi'hv^h*/-'6*^* >-■m*SnlliS an».-««tenement of tho polipy sued upon. I^rt^'lahawering,- defendant' denle» unan une amagos sustained were «rtept’'iinplly 'claimed in-/the supplemental petition.,

■'3/he evidence /shows' that the -oar was completely overturned /intensively 'damaged; that at the time of' tho aooi^Kf,;khÓRoS^'¿*i''^ks.'persons.in -the- par* .all.'.of - whom, wore- tho, sole ^#kessee: to- the Cooident. In filing with the defendant oompany a inptipóiíófi-thó/aoQident.as ,required by the terms, of, the policy, plain,fti'ff~made 'and'signpd the following written deolaratien, .whioh we quote ’kn-partj-

,. nbvertook a truck, whioh we preoeeded to pass. Hear Wheel of my oar got in dltoh and oaused me to lose -'/oCntrel oí .-'oar,, whioh overturned.
"(Signed) ,P. J. Calderone."

■ilnviaakdng /pr.opf' Cf‘loss., '/as another requirement under the . palioy, plaihtiff-iiiadeV. sdgned.and swore to- the' following facts;

’"As I «s-driving my-automobile on tho west bank Of the . riverj '/on--;the Algiers-road, at a speed of about 16. aller'em/hour:;/! netloed an automobile, coming in.the pppesite diridtion, at-the .rate-of about. ZO/miles an hour, She»' the' entoínebl-1'e, was .about to pass me, I'-tried to get - ■a/’:firmer ,ghip>o» the >oad and.the autemibile skidded-Into thS;4'i#,C|h./tod W opming-np^the ether vbahh;:.'turned corn-- ' pl|tel-y-óyear..- .wreohitog’my;..autejaobileA iahe'-totemeblls: that '-'was'ñ.ómif|í.'in.';thé ^80.»-^^0#|0».-'3!0*^«04,. although the people in it saw what happened to my automobile^ Although I have used every effort, I have been unabl,. to find out to whom this automobile belonged. It was a two-ton txuok, but I do not know ofwhat make."

After filing his original petition and only after being ordered by. the trial oourt to supplement his original declarations with, more definite averments as to the object with whiah he alaimifta have collided, did plaintiff venture as a definite oause for the aooident the allegation that his oar had oollided with a "rut" in the street or road-bed. If this was the proximate and dominant oause of the aooident, we are unahle to conceive why this outstanding fact should have been totally disregarded by olairaant or even oarelesslv omitted In the preparation of both the notioe of tho aooident and the sworn proof of loss.

While avering in his original petition the faot that his oar struok an object in the street, he further declares:

"And in oraer to prevent his oar from falling-into said ditoh, petitioner turned his oar with' promptness and energy almost straight across the middle of the street, and in so doing, the car turned upside down."

Our appreciation'of the evidence lead's us to the oonoluslon from plaintiff's attempt to, olear his' rapidly, moving oar from collision . with the truck passing him in or near the ourVC in the robd-way,. ijtát bhe resultant rapid change ef dlrsetion given to his own oar, caused it to he turned upside-down. Plaintiff's belated theory as to the collision with the rut in the road being the oause of the aooident, is only supported with positiveness in his own testimony. ■ One of,his other two witness.es has failed to verify tais fact in any way, i&ile the other testifies, in accounting for the accident, -.that "the .oar aust have bit a rut and In so doing completely turned over." Ho one' but plaintiff bimsslf has testified to having seen any rut or obstruo- ' bien in the road-way. Assuming that conclusive proof had been made - of such a faot, there is nothing to oonvinoe us of a collision with. suoh an object. However liberal the text writers or courts may he towards construing such contracts of insurance in favor'of the insured rather than the insurer, we are not able to hold that .the words of the polioy before, us covering collision "with any other object" could, tinder a most liberal construction, embrace such conditions as are contended for in the instant case. Zhe word "rut" in its most usual and popular significance implies that which is depressed beneath the surface and not what is visible, obstructive or tangible:

"BUZ.: A sunken track made by wheel or worn by constant passing and re-pássing of wheeled vehicles; hence, a groove forming a path, far anything." (Standard Dictionary).

We are unable to find from the evidence any conclusive fact that plaintiff's oar was either precipitated into or collided with the- so-called "rut," nor does any of the testimony Justify eur holding that such was an object, collision with which would give rise to liability under the polioy. Jfrom examination of the -decisions of other States oited by counsel for plaintiff, wo note authority for the -ruling that the words "collision with an object" embraces both perpendioulai and horizontal objeots,- including the flat earth or a body óf water, but in these oases the resulting damages arose from initial collision with another object loading to the final contact or collision with such bodies of earth or water. Berry on Automobiles, 3rd Ed., page 1519, paragraph 17£3, in discussing those oases proceeds further to say:

"It has been held that tho driving of an automobile into a hole six or seven inches deep and eighteen inches wide between oar tracks, in a city street,' is not suoh a ’collision with an object' as is contemplated by the parties to an insurance polioy containing, a' collision clause."
Dougherty v. Insurance Co., 38 Pa.,Co.,Ct., 119.

We have not been referred to nor have wo found in eur State’s Jurisprudence any oases similar to the one now under consideration. In the case of Wettengel v. United States Lloyds, 157 Wis., 433, 147 N.W., 360, where a clause in the policy covered-damage to automobile and equipment by being in collision with any other autemobile, vehicle or- object, and excluding damages causedby striking any. portion of the road-bed' or. by striking -the rails or ties of street, steam or eleotrio- railroads, etc. In the policy before us.there is no provision excluding or including a collision with any portion of a read-bed. In the case cited, the Court said:

”fhis accident is so obviously outside of the collision stipulation of the policy that discussion seems superfluous. In order to bring the oase within the policy there must have been: First, a-oolllsion; seoond, the collision must have been w^th another automobile, vehicle or somewhat similar object ojuádem genr-ria. and, third, it must not have-been with any portioSTolT’the road-bed, meaning .the ground on which the' machine was running or attempting to run. Mo such condition was shown as that insured against.”

We think in the instant case, as in the one just cited, the accident is obviously outside of the specific conditions covered by the policy.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the judgment herein appealed from be and the same is hereby affirmed at plaintiff's costs in both courts.

JUDGMENT AFFIRMED.

APRIL 16, 1923.  