(dissenting). The majority opinion acknowledges that the accident in this case was caused by a collision, but gives an interpretation to the policy which would include collision in its coverage, although explicitly excluded by the terms of the policy, when the object collided with is water. This interpretation rests upon the provision of the policy that ‘ ‘ Loss caused by * * * water * * * shall not be deemed loss caused by collision ”.
Even though the policy is construed most strongly against the insurance company, I am unable to agree that the intended or fair meaning of the language is that loss caused by collision is included within the coverage of the policy if the collision is with a body of water. I would think the sense of the policy was that water damage would not be considered damage by collision. The question would still remain as to whether the damage was caused by water, and would not be resolved in the affirmative by the mere incidence of water being the object with which a collision takes place, when it is demonstrable that the damage was due to the impact or collision and not to the destructive power of water.
Water damage is something which results from water in its. quality as water, that is by submersion, inundation or leakage. If it be clear that the damage was not caused by water as such, but solely by force of impact with water as a body or object, it seems to me that we are bound to say that the damage was caused by collision and not by water.
In this case the causal fact is clear in the evidence and finding of the jury. Plaintiff’s expert on damage to the car, the owner of an auto body repair shop, testified that the impact with the water had bent the tie rod which put the steering mechanism out of order. In amplification, he said, “ If he hit the water, if he hit it going that fast, it could bend all the stuff in there.”
The court charged the jury, without exception, and this became the law of the case, that “ If you believe that the tie rod was bent as a result of coming in contact with this puddle of water and that the accident was caused as a result of the damage to the tie rod, then you decide for the plaintiff. * * * If
you believe that the accident happened in any other manner than the result of the bent tie rod, which was bent as a result of coming in contact with this puddle of water, then decide for the defendant.” Implicit in the jury’s finding in plaintiff’s favor, therefore, is a finding that the accident was caused by the “ contact ” With the body of Water.
*81The ease of Tonkin v. California Ins. Co. (294 N. Y. 326) is readily distinguishable. In that case the plaintiff, while driving his car,;noticed a fire under the dashboard. He immediately applied his brakes and attempted to pull his car over to the side of the road, but his vision became obscured by the smoke and his car collided with another vehicle. The court held that the damage resulting from the collision as well as that resulting from the fire was attributable to the fire and came under the fire coverage of the policy and was not excluded by the exception of collision damage from the coverage of the policy.
The chain of causation in the Tonkin case started with the fire which preceded the collision and caused the collision. This case presents no similar condition of water damage independent of and preceding the collision and leading to the collision. On the contrary, the damage here all resulted from the single fact of contact or impact. There was no water damage in the sense that anyone would think of water damage.
The judgment should be reversed and the complaint dismissed.
Dore and Cohn, JJ., concur with Botein, J.; Peck, P. J., dissents and votes to reverse and dismiss the complaint in opinion in which Callahan, J., concurs.
Determination affirmed, with costs and disbursements to the respondent. [See post, p. 805.]