Kirkley v. Merrimack Mutual Fire Insurance, 232 N.C. 292 (1950)

June 9, 1950 · Supreme Court of North Carolina

232 N.C. 292

MRS. LELIA KIRKLEY v. MERRIMACK MUTUAL FIRE INSURANCE COMPANY.

(Filed 9 June, 1950.)

Í. Insurance § 43a—

While a policy covering accidental damage or loss to an automobile, except by collision, like other policies, will be construed strictly against the insurer when the provisions therein are ambiguous, yet the intention of the contracting parties as gathered from the instrument itself is controlling.

2. Same—

“Accidental” ordinarily implies that which is unintended, unexpected, unforeseen and fortuitous, and refers to the event or occurrence which produces the result and not to the result.

3. Same—

A policy covering all property damage to an automobile resulting from direct and accidental loss of or damage to the vehicle, excep)t loss caused by collision, is held not to cover damage to the wooden frame of the station wagon insured caused by ■ wood-boring insects entering at an unknown time and manner and remaining therein for an unknown period, certainly in the absence of evidence that the original infestation took place during the life of the policy.

"' Appeal by plaintiff from Patton, Special Judge, at December Extra Civil Term, 1949, of MeckleNbuRQ.

Tbis is an action to recover for alleged accidental loss or damage under tbe provisions of an automobile policy, issued by tbe defendant on 1 May, 1947, on tbe plaintiffs Special De Luxe 1946 Plymouth Station Wagon, and renewed eacb year thereafter until and including 1 May, 1949. Tbe required premium was paid on tbe policy and tbe renewals thereof through 1 May, 1949, and the policy was in full force and effect from 1 May, 1947, until it was canceled by tbe defendant on 15 September, 1949.

Tbe comprehensive loss or damage clause contained in tbe insurance policy, reads' as follows: “Any direct and accidental loss of or damage to the automobile except loss caused by collision of tbe automobile witb another object or by upset of tbe automobile or by collision of tbe automobile witb a vehicle to which it is attached. Breakage of glass and loss caused by missiles, falling objects, fire, theft, explosion, earthquake, windstorm, bail, water, flood, vandalism, riot or civil commotion shall not be deemed loss caused by collision or upset.”

Tbe plaintiff alleges:

“In tbe month of June, 1949, the plaintiff discovered that some form of wood-boring beetle bad got into tbe wooden portions of said station wagon and bad eaten out large portions of such wood and weakened other portions so that tbe entire wooden frame work of tbe station wagon was seriously weakened and damaged. Portions of tbe body more particularly destroyed or damaged were tbe wheel bouse rail, window rail, and front quarter post of the left rear quarter; tbe wheel bouse rail, window rail, and front quarter post of tbe right rear quarter; right running board; left running board; left rear door, and right front door; all to tbe plaintiff’s damage in tbe sum of $500.00.

“Tbe aforesaid damage to tbe plaintiff’s automobile constituted accidental damage to tbe said automobile in that such damage was entirely unforeseen by tbe plaintiff, occurred without the will of design of tbe plaintiff or of any other person, was unexpected, unusual and undesigned, tbe nature and type of the wood-boring beetle causing said damage being highly unusual in this section of tbe country, in fact unknown to experts, tbe method of entry into said station wagon being unknown, and tbe very presence of such beetles or any other wood-boring bug in a station wagon being a highly unusual occurrence.”

Tbe defendant demurred to tbe complaint on tbe ground that it does not state facts sufficient to constitute a cause of action, in that:

(1) Tbe complaint does not allege that any direct and accidental damage occurred during tbe effective dates of tbe insurance.

(2) Tbe complaint shows on its face that tbe alleged damage was caused by tbe infestation of some type of beetle, termite or other wood-boring insect and was not a direct and accidental damage as contemplated by tbe defendant’s policy of insurance.

Tbe court below sustained tbe demurrer and entered judgment accordingly. Tbe plaintiff excepted, appealed and assigns error.

Jones & Small for plaintiff.

Smathers & Carpenter for defendant.

Denny, J.

Does damage to the wooden frame of the plaintiff’s station wagon caused by wood-boring insects, entering at an unknown time and in an unknown manner and remaining therein for an unknown period, constitute direct and accidental damage or loss, as contemplated under the provisions of the comprehensive loss or damage clause of the automobile insurance policy issued to the plaintiff by the defendant? This question in our opinion must be answered in the negative.

The so-called comprehensive coverage policy is written for the purpose of including all property damages to an automobile resulting from “direct and accidental loss of or damage to such automobile except loss caused by collision . . .” Even so, in our opinion, the loss complained of in this action is not “accidental” within the meaning of the provisions of the policy, although the loss sustained may be traceable to the infestation of the wooden portions of the body of the plaintiff’s station wagon by some kind of wood-boring beetle.

The mere fact that an occurrence is infrequent or unusual or even unexpected, does not necessarily make it an accident within the meaning of a casualty insurance policy. It is the general rule to construe such policies strictly against the insurer when the provisions therein are ambiguous, but like any, other contract the intention of the contracting parties must be gathered from the instrument itself. Crowell v. Ins. Co., 169 N.C. 35, 85 S.E. 37; McCain v. Ins. Co., 190 N.C. 549, 130 S.E. 186; Jolley v. Ins. Co., 199 N.C. 269, 154 S.E. 400; Woodell v. Ins. Co., 214 N.C. 496, 199 S.E. 719; Stanback v. Ins. Co., 220 N.C. 494, 17 S.E. 2d 666; Bailey v. Ins. Co., 222 N.C. 716, 24 S.E. 2d 614.

“Accidental” means, in common speech, that which is unintended, unexpected, unforeseen and fortuitous, or, to put it another way, an accident in its ordinary sense is an event caused by some casualty, disaster, chance, mishap, misadventure, or hazard. It is defined in Black’s Law Dictionary, 3rd Ed., p. 23, as “an unforeseen event, occurring without the will or design of the person whose mere act caused it; an unexpected, unusual, or undesigned occurrence; the effect of an unknown cause, or, the cause being known, an unprecedented consequence of it; a casualty.” See also North American Accident Ins. Co. v. Henderson, 180 Miss. 395, 177 So. 528; New York Life Ins. Co. v. Wood, 182 Miss. 233, 190 So. 819; Stuart v. Occidental Life Ins. Co., 156 Ore. 522, 68 P. 2d 1037; U. S. Mutual Accident Asso. v. Barry, 131 U.S. 100, 33 L. Ed. 60; Crutchfield v. R. & D. R. R. Co., 76 N.C. 320; Harris v. Ins. Co., 204 N.C. 385, 168 S.E. 208; Mehaffey v. Ins. Co., 205 N.C. 701, 172 S.E. 331, and Fletcher v. Trust Co., 220 N.C. 148, 16 S.E. 2d 687.

The damages sustained by the plaintiff may have been unusual and unexpected, but were they the result of “direct and accidental loss,” as contemplated in the comprehensive clause of the insurance policy involved? The infestation apparently existed over a period of years. It did not cause an accident directly or otherwise, unless we construe the infestation of the station wagon by wood-boring beetles to be an accident. For ordinarily, the words “accident” and “accidental” refer to-the event or occurrence which produces the result and not the result. Fletcher v. Trust Co., supra.

Therefore, conceding, but not deciding, that the infestation was an accident and that the loss complained of resulted therefrom, there is no allegation in the plaintiff’s complaint to the effect that the entry and damages caused by the wood-boring beetle referred to in the complaint, occurred between the effective dates of the policy. In fact there is no allegation as to the identity of the insect or beetle, nor as to the rapidity with which it usually destroys wood of the type and character used in constructing the body of plaintiff’s station wagon. It is quite possible, since the nature and type of the wood-boring beetle, causing the damage complained of, is unknown in this section of the country, and the station wagon is a 1946 model, and the method of entry into said station wagon is alleged to be unknown, that the original infestation took place prior to 1 May, 1947.

Tbe case is a novel one, but in our opinion tbe judgment sustaining tbe demurrer should be

Affirmed.