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Parker v. Niagara Fire Insurance Co.

Decided: December 28, 1953.

HERMAN PARKER, PLAINTIFF-RESPONDENT,
v.
NIAGARA FIRE INSURANCE CO., A CORPORATION OF THE STATE OF NEW YORK, DEFENDANT-APPELLANT



Jayne, Francis and Stanton. The opinion of the court was delivered by Jayne, S.j.a.d.

Jayne

The evidence adduced at the trial of this case before the judge of the Union County District Court leaves the fundamentally essential factual information to which the law is to be applied in a state of abysmal incertitude and obscurity. We shall explain.

The defendant issued to the plaintiff one of those relatively youthful types of automobile insurance policies which are offered to the motorists under the attractive and assuasive title of "Comprehensive Coverage." The insurer obligates itself in capital letters comprehensively to indemnify the insured for loss of or damage to the insured's automobile, except by collision or upset. The insurer's contractual obligation is expressed in the policy as follows:

"To pay for any direct and accidental loss of or damage to the automobile, hereinafter called loss, except loss caused by collision of the automobile with another object or by upset of the automobile or by collision of the automobile with a vehicle to which it is attached. Breakage of glass and loss caused by missiles, falling objects, fire, theft, explosion, earthquake, windstorm, hail, water, flood, vandalism, riot or civil commotion shall not be deemed loss caused by collision or upset."

But the policy is likewise capacious in that it embodies a variety of exclusions, notably the one of immediate pertinency which renders the so-called comprehensive coverage inapplicable:

"to any damage to the automobile which is due and confined to wear and tear, freezing, mechanical or electrical breakdown or failure, unless such damage is the result of other loss covered by this policy."

On the morning of March 12, 1952 the plaintiff endeavored to start the engine of his Buick automobile and it would not

operate. He summoned a mechanic from the Union County Buick Company, who was correspondingly unsuccessful in starting the motor, and the plaintiff's automobile was towed to the repair shop of the company. Upon disassembling the engine it was discovered that a dark brown substance had coated the insides of the cylinders causing a seizure of the pistons. "This substance or liquid had been circulated through the oil pump, through the gears and through the strainer. That was all in through there," the mechanic explained. The oil pump did not appear to be out of order and oddly there was an adequate supply of oil in the crankcase, in which there was no visible trace of the brown substance.

The mechanic testified that although he had seen many engine seizures in his experience of 25 years, he had never before observed one of comparable characteristics. Moreover the seizure did not occur precipitantly during the operation of the engine. Did it occur immediately upon the immobilization of the pistons? No one knows. The reason for the condition seems to have been mysterious and a curiosity to ascertain it was naturally inspired.

A specimen of four ounces of the oil remaining in the crankcase was delivered to Jersey Testing Laboratories of Newark to detect the suspected presence in it of sugar or molasses. The report reads:

"Examination was made of oily residue and bearings obtained from a damaged motor. No evidence of sugar, abrasives or any other foreign substance other ...


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