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(100 So.) of them.” Maddox v. Westcott, 156 Ala. 492,, was well sustained by the foregoing author. 47 South, 170, 16 Ann. Cas. 604. See, also, 16 ities. R. C. L. 871.

[5, 6) Appellant relies, however, upon the Immediately upon learning that the plain- principle recognized in our decisions, that the tiff in this action had rented the place to rule forbidding introduction of parol proof this defendant, J. D. Holman (the owner) to vary or contradict writings applies only to sought to cancel the lease contract giving parties and privies, and not to strangers to notice to that effect to both the plaintiff and the writing, who are not bound thereby, and the defendant, and subsequently on January who may, therefore, when it is introduced 2, 1922, entered into a rental contract with to affect their rights, contradict it by parolthis defendant for the rent of this identical citing, among other authorities, Lehman v. place. Holman sought to justify his action Howze, 73 Ala. 302; Venable y. Thompson, 11 upon the theory that the plaintiff Pilcher Ala. 147; Robinson v. Moseley, 93 Ala. 70, 9 had violated this contract by subletting the South. 372; Jones v. First Nat. Bank, 206 property to this defendant and failing him- Ala. 207, 89 South. 437; Troy v. Norman, 107 self to move upon the premises and cultivate Ala. 667, 18 South. 255. These authorities the land.

are without application to the instant case. [3, 4] The defendant offered to show that The defendant had rented the place from at the time of the execution of the rental plaintiff, executed his note therefor, which contract between Holman and Pilcher there so recited, and, while he had not actually was a verbal understanding between the par- moved upon the premises, had in fact plowed ties that Pilcher was in fact to move upon some three or four acres when Holman interthe premises and not sublet, and, also, to fered, as above noted. Plaintiff had a valid make certain improvements not specified in lease for a period of five years. There has the contract above set out. The action of the been no failure of his title, nor other impedicourt in sustaining objection by plaintiff to ment to the use and enjoyment of the premthis part of the testimony constitutes the bas- ises, save the unauthorized interference on is for the assignment of error on this ap- Holman's part, that is unauthorized if the peal,

written contract is to stand unimpeached. It is a well-recognized general rule that Defendant's offered proof was for the pur. the writing is presumed to contain the entire pose of impeaching the written contract, contract, all the stipulations and promises varying and contradicting it. He was not a the parties intended to make and assume, stranger to plaintiff's title in the sense re

ferred to in the above cited authorities. He and that all previous negotiations and parol

was plaintiff's tenant and in privity with agreements were merged in the terms of the

such title. Had he continued in possession written instrument. There are of course

as plaintiff's tenant and suit been brought by some exceptions, as where the writing does Holman to oust him therefrom, defendant not purport to disclose a complete contract, I would have offered proof as to his tenancy

are persuaded, however, the case under plaintiff, and then shown plaintiff's here presented does not come within any of lease as a complete defense thereto. This the exceptions to the general rule.

but illustrates his relation to the lease. Un. Under the contract, as expressed in writ- der plaintiff's lease he had the right to posing, Pilcher had the right to sublet the prem-session for five years, and defendant by his ises and to prove by parol to the contrary, rental contract had the right to possession as would be violative of the well-understood plaintiff's tenant, and in fact did, to some exrule prohibiting parol proof which contra-tent at least, exercise that right, and so far dicts or varies written contracts.

as this record discloses, was not justified in A question of similar character was pre- thus repudiating his tenancy under plaintiff, sented in the recent case of Miller Bros. v. and, very clearly, will not be permitted under Direct Lumber Co., 207 Ala. 338, 92 South. these circumstances to impeach plaintiff's ti

tle by contradicting his written lease. As previously stated, the contract bears Much stress is laid upon Lehman v. Howze, upon its face every evidence that it was full supra, but that authority does not militate and complete and intended to express the against the conclusion here reached. There understanding and agreement of the parties. the subtenant was permitted to show that So, also, evidence that the tenant was to the consideration recited in a separate writmake any improvements other than those ten obligation of the tenant in chief was not stipulated in the written contract would be as therein recited, but this writing bore no violative of this same rule of evidence. Mid- relation to the title of the tenant to the premdleton v. Alabama Power Co., 196 Ala. 1, 71 | ises or right to possession, but was an entireSouth. 461; Hill v. Weil, 202 Ala. 400, 80 ly separate obligation of the chief tenant, South. 536; Griel v, Lomax, 86 Ala. 132, 5 with which the subtenant was in no manner South. 325; Drennen v. Satterfield, 119 Ala. connected. As to that particular obligation, 84, 24 South. 723.

the subtenant was a stranger. Defendant in We are persuaded that the ruling of the the instant case, however, is not a stranger trial court upon these questions of evidence to plaintiff's title, which he then sought to

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destroy, but in fact in privity therewith. BOULDIN, J. The suit is on an automa The cases are readily distinguishable. bile insurance policy. The actionable loss is Let the judgment be affirmed.

claimed under the collision clause of the pol. Affirmed.

icy.

In substance, the policy insured "against ANDERSON, C. J., and SOMERVILLE direct loss or damage” “by being in accidenand THOMAS, JJ., concur.

tal collision during the period insured with any other automobile, vehicle, or object." It excluded injury received while engaged in a race or speed contest, or while operated by

one under sixteen years of age. ST. PAUL FIRE & MARINE INS. CO. V.

The evidence for plaintiff tended to show AMERICAN COMPOUNDING CO.

that the car, a Winton Six, was standing in (6 Div. 61.)

front of plaintiff's office on the crest of a

hill; the rear wheels were on level ground, (Supreme Court of Alabama. Jan. 31, 1924. and the fore wheels on sloping ground. The On Rehearing May 29, 1924. Further Re

car was headed down hill. It had stood hearing Denied June 30, 1924.)

thus, with brakes on, overnight. In the 1. Insurance 146(3) Collision clause in morning, while Mr. Clark, the custodian and

automobile policy, as all insurance contracts, operator, was sweeping it out, the car starte construed against insurer.

ed, ran down the hill some 90 feet, and off A collision clause in an automobile policy, a precipice some 25 or 30 feet in height, like all insurance contracts, should be con- landing head on upon the rock bottom of an strued most strongly against the insurer, since excavation. Was the loss thus sustained covhe may insert such exceptions as he desires to

ered by the contract of insurance? Before limit the effect of general words.

the days of automobile insurance, injuries 2. Insurance 424—"Collision” within auto. from “collision" had a place in admiralty

mobile policy clause defined; "impact"; "ob- law. ject."

In London Assurance v. Companhia De "Collision,” within clause insuring automo- Moagens Do Barreiro, 167 U. S. 149, 17 Sup. bile against "accidental collision

with Ct. 785, 42 L Ed. 112, it was declared that any other automobile, vehicle, or object," cov- both vessels need not be in motion at the ers all unforeseen, accidental collisions with

time of collision. any kind of object, and implies an impact or sudden contact of a moving body with an ob- "If while anchored in the harbor a vessel is struction in its line of motion, whether both run into by another vessel, it would certainly bodies are in motion or one stationary and the be said that the two vessels had been in colliother, no matter which, in motion.

sion." (Ed. Note.-For other definitions see Words: "Collision imports the act of colliding, a strikand Phrases, First and Second Series, Colli- ing together, violent contact; but, as used in sion; Object.)

the admiralty, includes vessels coming in col

lision with any moving or stationary object, as 3. Insurance ww424-Facts held to constitute piles, drawbridge, etc., as well as another ves

"collision" within automobile policy clause; sel. Newtown Creek Towing Co. v. Ætna Ins. "object.

Co., 48 N. Y. Supp. 927, 930, 23 App. Div. 152." Where insured left his car overnight facing 2 Words and Phrases, p. 1259. down hill, and, while the custodian was sweeping it out the next morning, it started and ran

This court has recently considered colli. off a 25-foot precipice, striking the rock bottom of an excavation, the impact was a "collision" sion clauses in automobile insurance policies with an “object,” within a clause insuring the in two cases. car against “accidental collision

with In Interstate Casualty Co. v. Stewart, 208 any other automobile, vehicle, or object." Ala. 377, 94 South. 345, 26 A. L. R. 427.

Gardner, Sayre, and Somerville, JJ., dissent. the case was: While being driven over a ing.

hill, the steering gear of the car went wrong,

the driver lost control, the car ran down the Appeal from Circuit Court, Walker Coun- hill, left the road, and ran into an embankty; Ernest Lacy, Judge.

ment, crushing a wheel and overturning the

We held that such accident was cor. Action on a policy of automobile insurance ered by a clause insuring a loss "caused sole. by the American Compounding Company ly by being in collision with any other auagainst the St. Paul Fire & Marine Insur-tomobile, vehicle, or other object, either movance Company. Judgment for plaintiff, and

ing or stationary," etc. The court emphadefendant appeals. Affirmed on rehearing. sized the fact that the car struck the em

McGregor & McGregor, of Jasper, for ap- bankment nearly at right angles, and distinpellant.

guished the case from others wherein the W. F. Finch and Bankhead & Bankhead, car, either standing still or in motion, was all of Jasper, for appellee.

upset and injured by being overturned, withFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

car.

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(100 So.) out collision, except as the result of the up-derrick arm onto the truck. This was held set.

to be a collision. The court quotes numerThe court further cited and quoted with ous dictionary definitions of "collision,” and 'approval the case of Harris v. American Cas- says: ualty Co., 83 N. J. Law, 641, 85 Atl. 194, 44

"Most collisions occur in the violent impact L. R. A. (N. S.) 70, Ann. Cas. 1914B, 846, of two bodies on the same plane or level, and wherein the car was driven off a bridge and it is undoubtedly true that the word is more collided with the bed of a stream. It was frequently used to express such impacts than declared in such case that a collision may other violent impacts. But we doubt that this occur by striking the flat earth, as well as a fact has given to the word such a common unperpendicular object or embankment. Our derstanding of its meaning as to exclude violent case of Interstate Casualty Co. v. Stewart, Jf one machine was going up and another going

impacts unless upon the same plane or level. supra, is reported and annotated in 26 A. L. down a steep hill, and they came violently toR. 427, note 429. This note supplements the gether, no one would hesitate for a moment in former annotation to Universal Service Co. using the word 'collision.' At what angle V. American Ins. Co., 14 A. L. R. 188.

must the impact occur to make the use of the The meaning of “collision” and “object,” word 'collision' inappropriate and relieve the as used in such policies, has been the subject insurance company from liability? We are perof inquiry in the authorities reviewed in suaded that the better rule, the safe rule, is to

treat and consider the word as having the these notes.

meaning given it uniformly by the lexicographIn Wettengel v. United States “Lloyds," ers; that where there is a striking together, a 157 Wis. 433, 147 N. W. 360, Ann. Cas. 1915A, violent contact or meeting of two bodies, there 626, it was said:

is a collision between them, and that the angle

from which the impact occurs is unimportant." "The collision must have been with another automobile, vehicle, or somewhat similar object, In Wetherill v. Williamsburg City Fire ejusdem generis."

Ins. Co., 60 Pa, Super. Ct. 37, a car taken in

to a building subsequently backed into an In Bell v. American Ins. Co., 173 Wis. 533, open elevator shaft and dropped to the 181 N. W. 733, 14 A. L. R. 179, this an- ground floor. This was held a collision. nouncement was withdrawn, the court say. In Rouse v. St. Paul F. & M. Ins. Co., 203 ing:

Mo. App. 603, 219 S. W. 688, the car skidded "It has been held that the rule [ejusdem gen- off the road and collided with the earth at eris] does not apply where the specific words the bottom of an embankment. Held, a colembrace all objects of their class so that the lision. general words must bear a different meaning A different conclusion has been reached in from the specific words or be meaningless." other cases. In some cases the special word

ing of the collision clause has influenced the It may be regarded as now fully settled decision. Several cases are reviewed in Inthat a collision may occur with any kind of terstate Casualty Co. v. Stewart, supra. object.

In the late case of New Jersey Ins. Co. v. "Being in collision with an object” is of Young, 290 Fed. 155, the United States Cirso general import that any effort to classify cuit Court of Appeals (9th Circuit) reviewed the object with which a car may collide is the decision in the same cause by District futile, and apart from the thought of such Court of Montana, 284 Fed. 492. The car provision. Huddy on Automobiles (6th Ed.) was being driven at about 30 miles per hour 1038; Rouse v. St. Paul F. & M. Ins. Co., 203 on the road, when an axle broke. The broMo. 603, 219 S. W. 689; Babbitt on Motor Ve- ken axle and frame of the car dropped to the hicles (3d Ed.) § 1022; 6 C, J. 867 ; 14 R. C. ground and ploughed into the roadway, causL. 1273.

ing the car to pivot and be overturned. The [1] The authorities are not so uniform in court held that the noun "object,” as used in their definitions of "collision" as applied to the collision clause, includes something difvarying facts. It is generally conceded that ferent from the specific words “automobile” the collision clause in such policies, like all and "vehicle," "that the doctrine of ejusdem insurance contracts, should be construed generis cannot properly be applied.” “But most strongly against the insurer; this up- we are unable to construe the word 'collion the sound basis of reason that the form sion' as including damage caused by the of contract is made by him and tendered to striking of the car upon the roadway after the public. He may insert therein, as is the defective axle broke and let the car often done in this kind of policy, such ex- down." “The proximate cause was the ceptions as he may desire to limit the effect breaking of the defective axle, and damage of general words to a narrower meaning than was not by being in accidental collision' given by lexicographers.

with an object." In Universal Service Co. v. American Ins. It will be noted the decision is based on Co., 213 Mich. 523, 181 N. W. 1007, 14 A. L. the fact that the injury did not result diR. 187, a truck was being loaded by a steam rectly from collision. This principle, while shovel. The scoop dropped or fell from the not mentioned, really entered into other cases,

as where the car was overturned, or where , ing thereto may be applied by human agency, the wheel was smashed from strain. Where or it may be a natural force, to which all the only collision was contact by upsetting our actions and dealings are related. A car, the car, and the injury primarily attributable standing on a grade, is usually held in place thereto, it is generally held not the direct by the friction of the wheels on the ground. result of collision; but, where a collision This friction is maintained by brakes. If causes the upset, the injury is attributed to the brake does not hold, the car starts and the collision as the efficient cause.

proceeds down grade with accelerated veIn our recent case, Continental Casualty locity until arrested by collision or otherwise. Co. v. Paul, 209 Ala. 166, 95 South. 814, the The sole force in operation is the force of evidence was: The car, while climbing Red gravity, an ever present agency, and a conMountain, gave out of gasoline. The rear tinuing peril to a car. wheels were scotched, brakes applied, and [3] An automobile started by an external the car left standing, while the driver went force, or by force of gravity on failure of the to get gasoline. On his return the car was brakes to hold, and running uncontrolled gone. Three or four days later it was found against any object in its path, is in collision in a deep railroad cut. The cut was 50 to with such object. We think this court bas 60 feet deep; rocks or ore protruded from had no intention to hold otherwise. To do the rough side of the cut; signs were seen so would withdraw from this collision clause where the car went down; and where it hit a large class of perils clearly within its terms. in the mud at the bottom of the cut. We What was said in Continental Casualty Co. said:

v. Paul, 209 Ala. 160, 95 South, 814, touch"The car was stopped upon an incline-a suffi- ing "external force” was to show there was cient incline to cause the plaintiff to place no evidence of collision causing injury to the rocks behind the rear wheels. If the brakes car while standing in the road, or in causfailed to hold, and the car of its own momen-ing it to start down the embankment. tum, without the application of exterior force, We agree with the authorities holding that and simply in obedience to the law of gravity, the direction in which the car is headed is rolled down the embankment to the bottom of of no consequence; that striking an embankthis cut, we are clear to the view that the dam- ment, bowlder or ledge is no more a collision ages thus sustained would not be the result of a than striking the bottom of an excavation collision with 'any moving or stationary object.'

into which the car plunges. If the car came in contact or collided with So far as the case of Continental Casualty any object, whether moving or stationary, there Co. v. Paul, supra, is in conflict herewith, it is nothing in the proof to so indicate. The is overruled. principle of res ipsa loquitur can add nothing The foregoing expresses the views of the to the plaintiff's cause. All the damage sus-writer, in which' Justices THOMAS and tained to the car may be readily explained by MILLER concur. its fall down this rugged embankment, a dis

The majority of the court, composed of tance of 50 or 60 feet, and certainly its fall may as well be explained by the failure of the ANDERSON, C. J., SAYRE, SOMERVILLE, brakes to hold as by contact with some ex- and GARDNER, JJ., hold that the case in terior force."

principle is governed by the case of Contin.

ental Casualty Co. v. Paul, supra; that the Appellant earnestly insists that the case at case is distinguishable from Interstate Casubar is controlled by the above decision.

alty Co. v. Stewart, supra; and it follows The collision clause in an automobile pol- the evidence shows no accidental collision icy is manifestly intended to insure against with an object within the meaning of the peril peculiar to the character of the ma

contract. chine and its use.

It results that the court below was in [2] A collision implies an impact, the sud-error, and the cause is reversed and reden contact of a moving body with an ob- manded. struction in its line of motion. Both bodies

Reversed and remanded. may be in motion, or one in motion and the other stationary. Clearly it matters not whether the car or the other object is in ANDERSON, C. J., and SAYRE, SOMERmotion. The clause here involved covers all VILLE, and "GARDNER, JJ., concur. accidental collisions, save those arising from THOMAS, MILLER, and BOULDIN, JJ., certain extra hazardous uses. In the nature dissent. of things, no effort is made to enumerate the accidental collisions covered thereby. No

On Rehearing. particular kind of accident is in the contem- The majority of the court, composed of plation of the parties. The peril insured ANDERSON, C. J., THOMAS, MILLER and against is the unforeseen accident; other- BOULDIN, JJ., are of the opinion, and so wise, there is no accident in the true sense. decide, that the rehearing should be granted, Neither is there any limitation as to cause the judgment of reversal set aside, and the of the accidental collision. The force lead- judgment affirmed for the reason set forth

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(100 So.) in the foregoing opinion of BOULDIN, J., | purpose. Following the holding in the inand which is now adopted as the opinion of stant case to its last analysis, it is difficult the court.

to conceive of an injury to a car of any

character not covered and fully protected by SAYRE, SOMERVILLE, and GARDNER, the language used ("collision with an object JJ., dissent.

moving or stationary'), unless it be damage

by fire or internal combustion. I am,' of GARDNER, J. (dissenting). The case of course, fully mindful that the rule requires Continental Casualty Co. v. Paul, 209 Ala. the language of a policy be construed most 166, 95 South. 814, is by this decision over- strongly against the insurer, but, clearly, an ruled. In that case an automobile by the observance of this rule does not require a force of the law of gravity rolled down an construction so strained and out of harmony embankment to the bottom of the cut and with the meaning of the words used as comwas demolished. The court held that the monly accepted and understood. The rule mere impact of the car with the surface of of reason is yet to obtain. the earth at the bottom of the cut was not The Paul Case was decided in April, 1923, a collision with any “moving or stationary and by it the insured and insurer were given object," within the meaning of the language to understand that such an accident as there. of the policy. The court now holds to the in shown was not covered by the policy : contrary.

a year passes and the court holds to the con. The Paul Case, supra, finds support in trary. The doctrine of stare decisis is seemthe cases therein cited as well as some of ingly ignored and placed in the discard, yet the cases cited in the majority opinion in our reported decisions are replete with statethe instant case. There are cases to the ments and quotations to the effect that, contrary, which were not overlooked in the

“ 'Certainty * is the mother of repose, consideration of the Paul Case, but the and therefore the law aims at certainty view was entertained that the authorities

* . It is better that the law should be to the contrary were unsound and should certain

than that every judge should not be followed.

speculate upon improvement in it.'

It I respectfully submit that the holding of is often more important that a rule of law the Missouri court that the mere surface of should be fixed,

subthe earth is an "object" within the mean-ject to the uncertainty of fluctuating * ing of these policies is contrary to common 590; Snider v. Burks, 84 Ala. 57, 4 South. 225.

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decisions." Morton v. N. O. & Selma, 79 Ala. sense, sound logic, and the common acceptation of the meaning of the language. A

I am persuaded the decision in the instant freak decision is rendered none the less so case is fundamentally unsound, and thereby reason of the fact that it comes from a fore respectfully dissent. respectable authority. Good common sense in such cases is the safer guide.

On Appellant's Application for Rehearing. If the car running merely into the middle Our attention is called to certain rulings of a stream is in collision with an “object," presented for review not covered by the opinas seems to have been held by the New Jer. ion. sey court, then by the same logic, had the

Pleas were interposed setting up alleged car swerved into the Atlantic Ocean, the negligence of plaintiff's agent in leaving the ocean would then constitute an "object" automobile in such exposed position as to within the meaning of the policy and within lead to the accidental collision complained the contemplation of the contracting par- of. The court below sustained demurrers ties. If the surface of the earth at the bot- to these pleas. tom of a cut is an "object," then the sur Objection was also made to the proof of face of the roadbed must also be an object, loss. The record shows proof in writing, and, if a car by a sharp turn is upset on the but the objection is that it is defective in road, by like reasoning, it has collided with failing to conform to the requirements of the an "object." A train leaves the track, and policy. rolls down the embankment: we have not The full court has considered these sevheretofore spoken of such a wreck as a colli- eral rulings, and finds no reversible error sion, yet the illustration applies to this case, therein. But further discussion will serve no useful Application overruled.

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