Appellee, New Amsterdam Casualty Company, issued to appellant, Francis T. O'Rourke, d/b/a Goodyear Roof Restoring & Rebuilding Co., a policy of insurance in which it agreed:
The policy required appellee to defend suits filed against appellant.
Appellant, a roofing contractor, entered into a contract to re-roof the dwelling house of Joseph E. and Merille H. Glover, 913 Grandview S.E., Albuquerque, New Mexico. In the course of the re-roofing a rain occurred on the night of October 16, 1956, or the early morning of October 17, 1956, damaging the Glover residence and some household goods.
Suit was brought against appellant by St. Paul Fire and Marine Insurance Company, the subrogated insurance carrier of Joseph E. and Merille H. Glover, praying judgment in the sum of $4,037.09. Appellee refused to defend said suit. Appellant retained attorneys to defend said suit and subsequently the suit was settled for $1,000. Appellant then filed this suit against appellee, praying judgment in the sum of $1,700, which included counsel fees. Appellee answered this suit alleging that the damage to the Glover residence was not caused by an accident but resulted from rainfall into the building, the roof of which had been removed by appellant.
At the conclusion of appellant's evidence, appellee moved for a directed verdict, and although the court stated it would reserve its ruling until he heard all of the evidence, no further evidence was presented. After both sides had rested, appellee renewed its motion to dismiss, the motion was argued, and the trial court granted the motion for directed verdict. Judgment was rendered for appellee and this appeal followed.
The insurance policy issued to appellant is designated "New Amsterdam Casualty Company Schedule Manufacturers' and Contractors' Liability Policy." It is admitted that the insurance policy was in effect at the time of the incident when a rain occurred damaging the Glover residence. The pertinent provisions of the policy are as follows:
The evidence discloses that appellant commenced the roofing operations on the Glover residence on the morning of October 16, 1956, and finished on October 18, 1956. Appellant started working at approximately 7:30 or 8:00 A.M. on the morning of October 16, 1956, and about that time on said date he telephoned the Weather Bureau and inquired if there was any reasonable amount of assurance that there would be no moisture in sight for at least 24 to 30 hours. The Weather Bureau said "there is no rain in sight" and appellant testified that the weather was clear at that time. Appellant also testified as to the day of October 16, 1956, saying "It was a dry warm day and the sky was clear." Appellant left the Glover operation about 5:00
The word "accident" is not defined in the insurance policy.
Appellant raises two points upon which it relies for reversal: (1) That the trial court erred in granting appellees' motion for directed verdict for the reason that a prima facie case had been made out by appellant; and (2) that it was error to dismiss count two of appellant's complaint. Appellant contends that under the factual situation in this case and the law applicable thereto, that appellant was covered under its policy of insurance.
It has been held that where the term "accident" is not defined in the policy, the term must be interpreted in its usual, ordinary and popular sense. M. Schnoll and Son, Inc. v. Standard Accident Ins. Co., 190 Pa.Super. 360, 154 A.2d 431.
The term "accident" has been variously defined. In United States Mutual Accident Association v. Barry, 131 U.S. 100, at page 121, 9 S.Ct. 755, at page 762, 33 L.Ed. 60, "accidental" is defined as meaning "happening by chance, unexpectedly taking place, not according to the usual course of things, or not as expected."
In Ocean Accident & Guarantee Corp. v. Penick & Ford, 8 Cir., Iowa, 1939, 101 F.2d 493, 497, the court said:
Webster's New International Dictionary, Second Edition, Unabridged, defines "accident" as follows:
This court, speaking through Chief Justice Brice, in Stevenson v. Lee Moor Contracting Co., 45 N.M. 354, 115 P.2d 342, 350, after reviewing many authorities, including the English cases, stated:
Citing Fenton v. Thorley, (1903) A.C. 443.
We also said in the Stevenson case:
See also Webb v. New Mexico Pub. Co., 47 N.M. 279, 141 P.2d 333, 148 A.L.R. 1002; and Sanchez v. Board of County Commissioners, 63 N.M. 85, 313 P.2d 1055.
In Cross v. Zurich General Accident & Liability Ins. Co., 7 Cir. Ill., 1950, 184 F.2d 609, 611, Cross and another sued Zurich General Accident & Liability Ins. Co. under a public liability insurance policy, to defend against or settle claims against Cross for damage to glass in windows of a building by hydrofluoric acid in a solution used by plaintiffs in cleaning the outside walls of the building. The district judge held that the damage was not caused by accident within the policy. The Circuit Court held that the insured's negligence is not the proper test in considering what constitutes an accident within a public liability policy containing a clause obligating the insurer to pay all sums which insured becomes obligated to pay because of his legal liability for property damage caused by accident. The United States Circuit Court of Appeals, Seventh Circuit, in passing on this case said:
Rex Roofing Co. v. Lumber Mut. Cas. Ins. Co., 280 App.Div. 665, 116 N.Y.S.2d 876, was a case wherein a roofing company was engaged in resurfacing the roof of an apartment building. The work commenced on January 18th and was suspended because of inclement weather on the 19th. Work was resumed on the 20th and progressed on the 21st to a point where the entire roof was covered with felts, nailed down and sealed on all sides with flashing cement, and nearly half of the roof was covered with an outer layer of felts mopped in with hot asphalt, when it began to snow heavily, preventing completion of the work. Later in the day the snow turned to rain. Because the roof was a flat surface and snow-covered, the water was unable to drain off and collected on the roof and backed up under the felts, leaking down into the interior of the building. The court held that the water leaking through the roof left exposed to the elements by the roofing company's inability to finish the job, because of inclement weather, was caused by "accident" within the purview of the policy insuring roofing contractor against liability for damages because of injury to property caused by accident. See also Juzefski v. Western Casualty and Surety Company, 173 Cal.App.2d 118, 342 P.2d 928; Minkov v. Reliance Ins. Co. of Phila., 54 N.J.Super. 509, 149 A.2d 260.
In Innis v. McDonald, Ohio Com.Pl., 1956, 150 N.E.2d 441, the court held that where exceptions, qualifications or exemptions are introduced into an insurance contract, a general presumption arises to the effect that that which is not clearly excluded from the operation of such contract is included in the operation thereof.
Appellee cites numerous cases from the Tenth United States Circuit Court of Appeals and other United States Circuit Courts, which are distinguishable from the case before us because of the difference in the facts and the principles of law applicable
It is probably true that in Wichita, Kansas, and in Arcadia, Florida, during the summertime, showers or rain are common occurrences and their happening cannot be said to be unexpected, unusual or unanticipated. In the case before us, the occurrence was on October 16 or 17, 1956, in Albuquerque, New Mexico, in the fall of the year. The evidence shows that during the months of July and August in Albuquerque there are frequent showers or rain, but that in October it is ordinarily a fairly dry month. The rain was unexpected. Appellant testified that the day of October 16, 1956, was clear; that he telephoned the Weather Bureau on the morning of said day and was told that the weather was clear and no rain was in sight; he telephoned the Weather Bureau again about 6:30 or 7:00 P.M. in the evening of said day and was again told that there was no rain in sight. These facts are distinguishable from Midland and the other cases cited by appellee.
Hutchinson Water Co. v. United States Fidelity & G. Co., 10 Cir. Kan., 1957, 250 F.2d 892, 894, and the cases therein cited are also distinguished from the case at bar. However, some of the language used in Hutchinson is pertinent:
American Cas. Co. of Reading, Pa. v. Minnesota F.B.S. Co., 8 Cir. Minn., 1959, 270 F.2d 686, was a case where insured's fertilizer plant used explosives to blast its solidified material, thereby resulting in loud noises and vibrations and allowing the release of ammonia fumes, powder and dust, noise and vibrations, resulting from the explosions carried on over a period of more than six years, to the damage of surrounding property and discomfort to persons residing nearby. The court held, under the facts, that the resulting damage was not caused by "accident" within the terms of the liability policy.
The reasoning of these cases is that a finding that substantial damage of the type incurred was a normal and probable consequence of such blasting and clearing as the contractor undertook; that under the law it is sufficient to sustain a conclusion that the damage was not caused by accident within the meaning of the policy. Or, put another way, these cases involved conscious acts, as a result of which it could reasonably be foreseen that the damage which actually occurred would result.
That the Tenth Circuit Court of Appeals is still concerned with the logic behind these cases is observed in Albuquerque Gravel Products Company v. American Employers Insurance Company, 10 Cir. N.M., 1960, 282 F.2d 218, 221, wherein the court said:
Although we do not adopt the language, as it is unnecessary for a decision in this case, we direct attention to a most interesting discussion on the phrase "caused by accident" found in Vol. 23, Insurance Counsel Journal, 1956, pp. 33-43, and particularly to the final paragraph thereof.
In the case at bar, the rain, which was the immediate cause of the damage, was sudden and unpredicted, and can properly be considered an accidental cause or result. Under the facts of the case before us and the authorities cited, we hold that the damage caused to the Glover residence by the rain on the night of October 16, 1956, or the early morning of October 17, 1956, was an accident within the terms of the insurance policy, and that appellee was obligated to defend against said claim and pay any judgment rendered thereon.
In view of our disposition of this case, it becomes unnecessary to consider the matters raised under appellant's point two.
The case is remanded to the district court with instructions to set aside its judgment of dismissal and enter a judgment for appellant.
It is so ordered.
CARMODY and NOBLE, JJ., concur.
COMPTON, C.J., and MOISE, J., not participating.
On Motion for Rehearing
In the motion for rehearing, appellee, in addition to other grounds, seeks a rehearing by reason of our directing a judgment for appellant, even though such relief was not sought.
To clarify such direction, it need be mentioned that appellee had an opportunity to present evidence which might tend to dispute the facts, but he did not do so and rested his case. The facts of the case were not disputed. Actually, counsel for appellee in his opening statement so advised the court and jury. Additionally, there was, for all practical purposes, no cross-examination which would raise any factual question for the jury's determination, the sole issue being a proposition of law that the occurrence which caused the damage had not been shown to be within the coverage of the insurance policy. By our decision herein, this court has answered that question. Since no factual issue remains, the ends of justice will be better served by a mandate which will bring this litigation to an end and, under such circumstances, it is the province of this court to direct the entry of a proper judgment. See Rogers v. Kemp Lumber Co., 18 N.M. 300, 137 P. 586, 51 L.R.A.,N.S., 594; Willis v. Kronendonk, 58 Utah. 592, 200 P. 1025, 18 A.L.R. 947; Bolian v. Washington-St. Tammany Elec. Coop., Inc., 218 La. 734, 50 So.2d 823, 25 A.L.R.2d 716; Electrical Contractors' Ass'n of City of Chicago v. A.S. Schulman Elec. Co., 391 Ill. 333, 63 N.E.2d 392, 161 A.L.R. 787; United States v. 449 Cases, 2 Cir., 212 F.2d 567,
The other point raised by appellee's motion for rehearing involves a matter which has been fully disposed of in the above opinion. The motion for rehearing is denied. It is so ordered.
CARMODY and NOBLE, JJ., concur.
COMPTON, C.J., and MOISE, J., not participating.