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GEIST v. NIAGARA FIRE INS. CO. (07/14/53)

July 14, 1953

GEIST
v.
NIAGARA FIRE INS. CO.



COUNSEL

Milton J. Kolansky and John P. Mahon, Scranton, for appellant.

C. H. Welles, 3d, Scranton, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Gunther and Wright, JJ.

Author: Hirt

[ 173 Pa. Super. Page 588]

HIRT, Judge.

Plaintiff, while operating his automobile on a narrow street in the City of Carbondale, ran over a projecting pipe which housed a shutoff valve of a utility. On hearing a sharp knock he immediately stopped his car and made an inspection to ascertain what his car had struck. He looked under his automobile and noted a shiny ridge on the top of the pipe indicating that it had come in contact with some part of his car. He did not observe anything wrong with his automobile and, assuming that it was his exhaust pipe that had struck the projection in the road, he proceeded on his way. After driving about five miles his motor began to pound and he smelled burning oil. He then pulled to the side of the road and, on investigation with the help of an automobile mechanic whom he had summoned, he ascertained that the projecting pipe had struck the plug in the bottom of the oil pan bending it backward and causing the pan to crack. The operation of the motor after the damage to the car from the above source

[ 173 Pa. Super. Page 589]

    caused the oil to leak out of the crack in the oil pan and, for want of lubrication, the engine finally burned out beyond repair.

Plaintiff was insured in a policy with defendant against 'lose of or damage to the automobile caused by collision of the automobile with another object * * *.' In this action against the defendant insurer, plaintiff sought to recover $395.96, the cost of installing a new engine, admittedly made necessary when the motor in the car was rendered useless by operation without lubrication. There was a collision within the terms of the policy, under the holding of Kramer v. Ohio Farmers Ins. Co., 157 Pa. Super. 130, 42 A.2d 194, 195, because of the contact of the automobile with the projecting pipe in the roadway 'with enough physical force to cause damage'. At the close of the proofs in the court below, the trial judge directed a verdict for the plaintiff in the above amount, less $50 deductible under the terms of the policy.

Among the duties imposed by the insurance contract the policy provided that when a loss occurs, the insured shall '(a) protect the automobile, whether or not the loss is covered by this policy, and any further loss due to the insured's failure to protect shall not be recoverable under this policy; reasonable expense incurred in affording such protection shall be deemed incurred at the company's request; * * *' And in disposing of a rule for judgment in favor of the defendant, reserved at the trial of the case, the court found that plaintiff was chargeable with knowledge of the collision because 'he got out of the car and looked for damage'. The plaintiff admitted a collision but when he drove off in his car he did not have notice from his inspection of the car that the projecting pipe had struck and damaged his oil pan. The lower court nevertheless held that with notice of the collision 'It thereupon

[ 173 Pa. Super. Page 590]

    became his duty to protect the automobile against further damage, and this he failed to do'; and that 'The fact that he failed to see or appreciate the immediate damage [could not] serve to extend the contract to cover subsequent damage caused by improvident operation of the car. There is no language in the policy to cover any such contingency * * *' The judgment will be reversed.

An insured in a policy issued to him for a consideration, is entitled to have the contract construed, as to its terms, most strictly against the insurer. Harbridge et ux. v. Mut. Fire Ins. Co., 151 Pa. Super. 278, 30 A.2d 360. Of course a doubt cannot be created in an insurance contract for the purpose of resolving it in favor of the insured. McCowley v. N. A. Accident Ins. Co., 150 Pa. Super. 540, 29 A.2d 215. But we cannot agree that the present plaintiff's failure, after the collision, to protect his automobile against further damage, raises a bar to recovery by him as a matter of law under the circumstances. The question here is one of proximate cause, i. e., whether there is a direct connection between the collision and the ultimate damage for which the plaintiff sought recovery. Cf. 23 A.L.R.2d 404. The controlling issue is whether plaintiff was negligent in failing to ascertain the actual damage to his car by a thorough inspection which would have disclosed the crack in the oil pan. A plaintiff may be charged with negligence as a matter of law only where reasonable men could not differ in their conclusions from the facts. Christ v. Hill Metal & Roofing Co., 314 Pa. 375, ...


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