274 N.W. 658 | S.D. | 1937
Plaintiff brought suit against the defendant to recover damages to his automobile in the sum of $500 upon an insurance policy issued by the defendant company. The policy contains *423 certain coverages. Among other things, damages occasioned by tornado, cyclone, windstorm, hail, earthquake, explosion, andwater damage. (Italics ours.) There are also certain terms in the policy couched in specific language, to the effect, "the car is insured against accidental and external discharge of water excluding damage caused by rain, sleet, snow, flood."
It appears that on the 5th day of July, 1934, there occurred at Brookings, S.D., and nearby vicinity, a severe rainstorm, and that about 2 1/2 inches of rain fell in a little less than two hours. The water from the rain gathered on the streets of Brookings to the approximate depth of 2 feet. These waters broke the basement windows and ran into the basement of the garage where the plaintiff's car was kept and caused damage to the car, the amount of which is not in controversy. The defendant contends that under the provisions of subdivision K, excluding damages caused by rain, sleet, snow, or flood, that the particular damage suffered in this case comes within the excluding clause and is not covered by the policy, and that the loss sustained was not a result of surface waters, but was the direct result of rain and flood.
The case was tried to the court. At the conclusion of the trial the court found for the plaintiff. Findings and conclusions were made and thereafter a judgment entered. A motion for new trial was made which was overruled. The defendant has appealed from the judgment and order overruling the motion for new trial.
Appellant has narrowed the issues to be decided by this court by stating that there is no question as to the extent of damages, and by suggesting in its brief that the only question to be decided is whether the cause of the damage is one covered by this particular policy of insurance. We are therefore called upon to interpret the terms of the policy and determine what damages to the car were covered by the policy issued by the appellant to the respondent. Certain excerpts from the policy may therefore be helpful in following our views in the consideration and construing of the terms of the policy issued by the appellant. They are as follows.
"* * * 3. Tornado, Cyclone, Windstorm, Hail, Earthquake, Explosion and Water Damage, as defined in Paragraph K, page 2. * * *" *424
(Paragraph K.)
"Tornado, Cyclone, Windstorm, Hail, Earthquake, Explosion and Water Damage:
"Tornado, Cyclone, Windstorm, Hail, Earthquake, Explosion, Accidental and External Discharge or Leakage of water; excluding damage caused by rain, sleet, snow, flood, rupture of tires and explosion within the combusion chamber of an internal combustion engine. * * *"
The policy in question was printed on a single sheet of paper, but folded so as to make four complete pages. The blank spaces were filled in with a typewriter. It contained certain language to the effect that it insured only against such risks and perils as were named in the different schedules. The appellant, by way of affirmative defense in its answer, and by the argument in its brief, contends that the policy does not cover the hazard alleged in the respondent's complaint, and did expressly exempt from its provisions any damage arising by reason of rain, sleet, snow, or flood, and that the facts contended for in respondent's complaint came within the exclusion provisions of said policy and were not covered.
Respondent states that his automobile was damaged by water and that such damage was expressly provided for within the terms of the policy, as this particular peril was included among the other perils listed on the front page of the policy, as shown in the above quotations.
It is apparent that the word "rain" may be eliminated from consideration, as the undoubted intention in using the word "rain" was to exclude damage to the car by direct contact with falling rain, and for illustration we might say in case of windows left open admitting rain which might do damage to the upholstery and interior of the car.
[1] Was this gathering of water, flood water, or might it be called surface waters? If it was flood water, then no recovery could be had on account of the exclusion stated in the policy. From an examination of a number of authorities, it would seem that the water which diffused and squandered itself over the surface in the territory of Brookings can in no sense be called flood waters, but partakes of all of the characteristics contained in various *425
definitions of what constitutes surface water. In Thompson v. New Haven Water Co.,
In Seufert v. Cook et al.,
In a later case, Le Brun v. Richards,
To us it is quite clear that the heavy rain which fell, after it reached the ground, was no longer rain, but became water and falls within that classification of waters which is known as surface water, and therefore under the terms of the policy the damage caused to the automobile was included under paragraph C-3, as defined by paragraph K, which covers the peril known as "water damage."
[2] The policy should be construed so as to carry out the intention of the parties, and it appears from the language of the whole instrument, viewed in the light of the surrounding circumstances, that the object and purpose of the contract was to insure respondent's automobile against water damage such as took place when the surface water broke through the basement windows of the garage. Contracts of insurance should be liberally construed to accomplish the purpose for which they were made. The reason for these rules is that the contract is written and prepared by the insurance company. Edge v. Insurance Co.,
The judgment and order appealed from are affirmed.
All the Judges concur. *427
