*1 for loss of damages trial extend question and society companionship. reversed, with directions
By Judgment Court.— a new trial questions on grant damages mother’s loss. for loss of for sociеty companionship pecuniary took no C. J., part. Martin, Respondent, v. Grimh, Fire Com- Western Insurance
pany, Appellant. 7, 1958. September 10 October *3 by there was a brief William A. Cameron For the appellant Lake, Cameron, both of Rice and oral W. argu- Howard Howard Cameron. W. ment by there was a brief and oral respondent argument For the Lee Young Ladysmith. Rodney by Defendant contends that to casualty Fairchild, J. overturn, an not or tractor was upset considering plaintiff’s insurance are defined its policy by that those terms . of . . ma- phrase: “(Meaning chines).” and “overturn” are definitions of “upset”
Dictionary International Dictionary (2d Webster’s New very helpful. each terms reference to the other. of those defines ed.), bal- as “To cause to losе The verb “overbalance” is defined defined, in The noun ance or “equilibrium” equilibrium.” material, A state of balance far as as Science. “Phys. so actions, static, forces eithеr as in between opposing zero, whose resultant is forces case of a acted on body chemical reaction when the veloc- as in a reversible dynamic, of a body both are equilibrium ities in directions equal. if, it tends to be stable on being slightly displaced, is said to . . .” return to original position; “over- dictionary meaning reference Thus by this provision wе may balancing” paraphrase machines far so in which the tip enough an event covering and their to return tendency their lose they tractor, at If the normal although tipped their position. to tend, for the mud and solid except ground an angle, it, normal operating upon to return to its position around would not horizontal plane, its treads upon tend, far so that it would If it enough the event. cover it, farther around and solid ground tip for the mud except and come rest on its normal operating position away a horizontal abnormal position upon in some other *4 or its side or or upset been a complete has there plane, in this policy. as defined overturn constru- called to decision any not been has attention Our Dic- in the before us. policy as appears same language the ing that the indicates sinking our own decisions in one of tum if be an the procеss mud can upset into of a vehicle side one 173 American Ins. Co. (1921), Bell v. In far enough. goes 733, 534, damage covered the 533, policy N. W. 181 Wis. collision but contained for no or overturn. provision upset The court described what as: “One side of the car happened settled into the gradually and the car over.” ground tipped The court decided that this not a сollision was and therefore cover, the did not but said policy “The incident (p. 536), the to the automobile causing here damage question of in common as an spoken or If it рarlance upset tip-over. were the to insure from purpose against damage resulting incident, such an words, should such why words of similar have been used ?” import,
Other courts have stated a test similar one we have above, stated were although they considering insur- policies ing against “upset” or “overturn” but not the containing set forth in defining phrase the before now us. policy In Jack Standard Marine Ins. Co. 33 Wash. (1949), 265, 351, 205 Pac. A. (2d) L. R. (2d) re- (2d) was allowed under a covery policy insuring against “upset” The machine involved “overturning.” was a Diesel shovel on treаds with a crane boom caterpillar from the projecting front and a at the rear. counterweight While for- moving ward, with the crane boom at an elevation of 75 the degrеes, machine was an incline propelled of 15 to 20 up degrees. vertical, When the crane boom approached the machine backward and rested on the with the counterweight front of the ends treads raised being approximately three feet above the The crane boom ground. fell backward across of the cab. toр
In that the event, covered concluding policy the Wash- court said : ington (p. 270) that, “It seem for of such an purposes insurance us, before as that words contained
be construed in view of the purpose policy; namely, the insured’s protect loss property against certain hazards. truck, road, If a moving along starts to overturn on its side, but is prevented reaching horizontal position road, aby bank side along lumber, pile a tree,
89 obstruction, and is a damaged impact, or claim, other any the truck a insuring against damage undеr arise in favor of the caused by overturning upset, loses its and the over- insured. a vehicle Once has commenced and proceeded beyond turning process in its of those vehicle charge stop progress, power it whether the vehicle turned would be over unimportant hillside, over, a down a came to rest on flat surface rolling in or cаme to a short an horizontal rest exactly position, the horizontal or at other It any distance above angle. be held that the vehicle had overturned or within the upset, аnd intent of such a meaning policy.” in 5A The Jack others are cited Am. Jur., decision and 54, Insurance, 55, a Automobile sec. state- support p. that, is not ment “A of the vehicle overturning within or ‘over- come necessary coverage against ‘upset’ not the vehicle The real test is whether or pre- turning.’ served its equilibrium.” with- motion for made both directed verdict pаrties a trial
out reservation constituted stipulation waiving jury the court for decision. the entire case to submitting 270.26, not make written Stats. The trial court did Sec. sec. 270.33. required by findings reversible nеcessarily of findings the lack “While 562, 75, Duncan, 111 N. Wis. 86 W. error, Duncan v. Jansen for want of appropriate findings, reverse may court 363, court N. 945. This Huerth, may 127 W. 143 Wis. v. that ‘a evidence shows if perusal affirm this judgmеnt would sustain a result which evidence reached the court 152, 153, v. Loper, found.’ Schmoldt Wis. if specifically Interstate Finance Corp. Dunphy 728.” 182 N. W. 101, N. 750. 300 W. 239 Wis. (1941), trial court made finding plaintiff’s Had the to havе lost its equilibrium had far enough machine would have sup- normal such finding operating position, summarized In our view the testimony ported judgment. *6 in the statement foregoing of facts could be intеr- properly as preted that the tractor was far showing out of enough so it plumb had lost and that it was held further tipping mud and solid what ground giving, called, be might lateral to various the of support portions machine. Since the could be testimony so to interpreted sustain a which finding the we support judgment, affirm. the
By Judgment affirmed. Court.— Martin, C. took no J., part. The (dissenting). majority opinion ig-
Hallows, J. nores the word in “overbalance” in “complete” modifying facts, the clause of In definitive view of the policy. my the 10-ton in tractor its normal use nosed into a sinkhole and in settled to its the soft mud. At no time did it right tip over or overturn but came to rest at an with of its angle part most, side on firm left At the it in ground. was mired ofmud at an and could not be slough angle remоved by its own is a power. common occurrence with Miring heavy construction equipment.
The involved is an inland marine with a policy policy contractor’s form equipment сoverage attached. The cover- in this of age granted type policy and narrow special very and is not to be confused with the comprehensive coverаge common in automobile policies. policy insured only limited and stated hazards such as fire and against (a) light- tornado, flood, cyclone, and ning, (b) explosion, (c) (d) collision, overturn, upset, (e) collapse col- bridges, lision, derailment, overturn of any and carrying conveyance, Each of certain marine these hazards perils. specifiс (f) After the language. was words “col- by limiting qualified lision, or overturn” the following language upset, appears a complete “(meaning policy gasoline, steam, oil, eleсtrically operated machines).” In of an insurance construing language pur- should be considered and the terms be their ordi- pose given common unless nary modified or defined undеrstanding in the In the hazard is defined as policy. The test laid down
overbalancing. majority opinion what constitutes the hazard insured is unrealistic and against unreasonable and does viоlence to the defined terms and Whether purpose the tractor policy. would tend to return to its normal or tend to position overturn completely for the mud or excеpt ground around it is not the test. The neither; tractor tended to do it was contented remain mired in the mud. This was the of situation *7 type sought be in this eliminated policy by words limiting “complete оverbalancing.”
I am authorized to state that Mr. concurs Currie Justice in this dissent. another, Trustees, Appellants,
Estate Gehl: Gehl others, Respondents.* Hansen 7, 1958. September 10 October * denied, costs, rehearing Motion for with on December $25 1958.