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Morie v. New Jersey Manufacturers Indemnity Insurance Co.

Decided: December 18, 1957.

AMELIA K. MORIE, PLAINTIFF-RESPONDENT,
v.
NEW JERSEY MANUFACTURERS INDEMNITY INSURANCE COMPANY, DEFENDANT-APPELLANT, AND AMELIA K. MORIE, PLAINTIFF-RESPONDENT, V. CHARLES NESI, TRADING AS NESI'S SUNOCO SERVICE STATION, DEFENDANT-RESPONDENT



Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Plaintiff sued defendant insurance company under its comprehensive automobile liability insurance policy to recover for damage to her automobile caused by an explosion. The company answered and by way of affirmative defenses alleged, among other things, that the damage was the direct result of a mechanical failure and not explosion and was excluded from coverage by the express terms of the policy. By separate complaint plaintiff sued defendant Nesi, trading as Nesi's Sunoco Service Station, charging him with having negligently serviced the automobile, with the result that an explosion occurred which damaged the car while in his custody. His answer denied negligence, and alleged that the work was done in a good and workmanlike manner, and the explosion in no way related to that work.

The two complaints were consolidated for trial. The jury returned a verdict of no cause of action in Nesi's favor and of $1,500 against the insurance company. The company

appeals from the judgment in plaintiff's favor. On the day of the argument plaintiff filed a "remittitur" (in effect a consent) directing that her judgment be reduced to $900.

On the morning of January 10, 1956 plaintiff, discovering that she could not start her automobile, phoned Nesi at his service station, who thereupon sent his employee Coslot, with booster battery and cables, to start the car. He did so and, after driving plaintiff to her hairdresser's in her car, took it to the service station where Gefner, an automobile mechanic in Nesi's employ, installed a new battery. What happened then may best be described in Gefner's and Coslot's words. Gefner testified:

"I turned the key on, and I stepped on the accelerator * * * and she started right off and, holy mackerel, what a bang. * * *

That noise was so loud that it scared me half to death. It shook the whole building, and pieces flew all over, and oil came out from the transmission, and there was an oil can on the side of the floor, and there one piece hit it, and bent the oil can right in.

There was parts flew all over the place, and oil over the whole floor. There was a piece right up in the ceiling, * * *."

Coslot said there was a "loud bang," a "terrific bang," and "pieces of metal flew all over the floor, and one flew up to the ceiling and stuck there."

There is no dispute that the damage to plaintiff's car was confined to the dynaflow transmission and its housing. None of her witnesses saw any signs of carbon or burn marks, either on the parts strewn over the garage floor and those left intact in the car, or on any part of the car. Nor did Professor Schneider, an expert metallurgist, who testified for the insurance company. However, he had not examined the damaged parts nor the car until some five months after the occurrence and after they had apparently been cleaned. He testified that the damage was the result of a mechanical failure caused by centrifugal force and not by an explosion. A portion of the dynaflow transmission -- the torque converter which is immersed in some 11 quarts of oil -- had broken away (by centrifugal force, he said) and shattered the 3/16" housing. Only the bottom part of this assembly, made of cast metals, was damaged. Although

on direct examination he spoke of "a metal failure," he admitted on cross-examination that there was nothing wrong with any of the metals used in the assembly; nothing in his scientific examination of the pieces could lead to any conclusion other than that the metal was in perfect condition.

The court denied defendant insurance company's motions for dismissal made at the close of plaintiff's case and of the entire case.

Plaintiff claims that the damage to her automobile was caused by an explosion within the language of coverage D of the policy, which reads:

"Coverage D -- Comprehensive Loss of or Damage to the Automobile, Except by Collision or Upset: 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 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, bood, vandalism, riot or civil commotion shall not be deemed loss caused by collision or upset."

Defendant counters with the contention that the damage was caused solely by mechanical breakdown or failure, within the purview of subparagraph (j) of the "Exclusions" clause, which is separate and distinct from the main clause of the insurance agreement providing insurance against ...


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