DISSENTING OPINION OF
MR. JUSTICE FRANCO SOTO.I dissent from the majority opinion.
As a question of fact I contend that there was no collision.
The plaintiff, who testified as a witness, said in part “that the accident occurred while passing the mound, it started there; that the overturning happened when the car had already passed the mound, it ended there; that he can not state with precision on which side the car fell; that his car might have fallen to the right, but it could also have happened that the right-hand side wheels climbed' over, thus overturning the car towards the left-hand side, one side being higher than the other.”
This part of the testimony of the plaintiff seems to have been overlooked by the majority of the court, for this is the *311only way to explain tlie erroneous conclusion of the court in holding that there had been a collision of the car of the plaintiff against a mound of earth on one side of Santurce’s new road. The facts in the case of Fabregas v. Porto Rican & American Ins. Co., 31 P.R.R. 632, are so different from those of this case that it can not apply here. That case refers to an automobile which fell over a. precipice and although the authorities do not agree, it was held that the impact of the automobile against the earth was a collision. I do not see the slightest parallel as to the facts so as to justify in any way its application to the case at bar.
The legal question which relates to the construction to be given to the clause covering the risk of collision is of the greatest importance. The clause reads:
“To indemnify the assured in the said warranties against loss by reason of damages or destruction of any of the automobiles enumerated and described in the said policy, including its operating equipment, while attached thereto, if caused solely by accidental collision with another object either moving or stationary, excluding, however: (a) Damages caused by the falling or turning* over of any of such automobile^, unless such fall or overturn is the direct result of, and immediately follows such accidental collision; (b) Damages or destruction caused directly or indirectly by fire.”
I have made all possible inquires without finding any authority directly construing, in connection with automobile insurance, a clause exactly or similarly worded as the clause which* is the subject of this suit, and it seems that in the absence of jurisprudence applicable thereto the tendency has been to apply as far as possible the principles established in connection with policies insuring risk by collision between vessels.
The ease of New York & Boston Dispatch Express Co. v. Trade & Merchants Insurance Co., 42 Am. Rep. 441, deals with a policy against fire covering certain goods carried in a boat. The goods were damaged on account of a collision with another vessel. A fire ensued and the boat sank, carry*312ing down the goods which, however were not destroyed by fire. Although the terms of the policy are inverted as compared with those of the case at bar, because in the former the risk covered by the policy was a fire and not a collision risk, the principle applicable is the same. The opinion of the court says:
“The defendant contends that the plaintiffs’ goods were injured by the sinking of the Ship, and as the water which flowed through the hole made by the collision caused her to sink, therefore the collision and not the fire caused the loss. Undoubtedly the injury occasioned by the collision would have caused the ves'sel to sink, and thereby have injured the plaintiffs’ property; and if that had been the only cause operating, the plaintiffs can not recover, for the insurance is not against collision, but only against fire- But if mean's and appliances were at hand by which that result could have been avoided, and the intervention of a new agency, namely, that of fire, prevented their use, then the fire was the proximate and immediate cause of the loss. It added a new element of destruction which rendered it impossible to control or prevent the consequences which would naturally follow from the collision.”
Other cases are cited in the above case and among them is that of Howard Ins. Co. v. Transportation Co., 12 Wall. 194, 42 Am. Rep. 443, and in the latter the reasoning of the court is as follows:
“The ves'sel of the defendant in error was injured by a collision, in consequence of which she filled rapidly with water, and a fire broke out. The jury found that the damage done by the sinking of the vessel was the natural result of the fire only. It was also found that the water would not have caused the ves'sel to sink below her promenade deck, had not some other cause of sinking supervened. Mr. Justice Strong, in a very able opinion, considers the question of proximate cause. And in answer to the claim of the plaintiff! in eiror, that the Sinking of the vessel was the result of two concurring causes, one the fire, and the other the water let in by the breach made by the collision, he says: ‘As the influx of the water was the direct and necessary consequence of the collision, it is argued that the collision was the predominating, and therefore the proximate cause of the loss. The argument overlooks the fact, distinctly found, that the damage resulting from the sinking of the vessel was the natural *313and necessary result of the fire only. If it be said that this was but an inference from facts previously found, it was not for that reason necessarily a mere legal conclusion. But we need not rely upon this. Apart from that finding, the other finding's, unquestionably of facts, show that neither the collision nor the presence of the water in the steamer’s hold was the predominating efficient cause of her going to the bottom. That result required the agency of the fire. It is found that the water would not have caused the ve'ssel to sink below her promenade deck, had not some other cause of sinking supervened. It would have expended its force at that point. The effects 'of the fire were necessary to give it additional efficiency. The fire was therefore the efficient predominating cause, as well as nearest in time to the catastrophe, which not only directly contributed to all the damage done, after the 'steamer had sunk to her promenade deck, but enlarged the destructive power of the water and rendered certain the submergence of the vessel.’ See also St. John v. American Ins. Co., 1 Kern. 516; Peters v. Warren Ins. Co., 14 Pet. 99.”
This last case had to be distinguished in the case of The G. R. Booth, 171 U. S. 450, cited by the majority, and it seems that necessarily it had to he done owing to the strength of the reasoning of Judge Strong.
Moreover, in view of the wording of the policy in the present case, the authorities cited by the majority who construe clauses that are different can not have the influence or scope sought to be given to it.
The policy in this case could not be clearer in its terms. It was thereby stipulated that only the injury caused by collision, as distinct from that caused directly or indirectly by fire, was covered by the policy. I do not conceive that the words “directly or indirectly caused by fire” refer, according to the majority, “to the cause or accident that set in motion all the other causes or results and was the proximate or efficient cause of the happening of the event.” This is stated on the strength.of the authorities which are not cited. It would be curious to hear of a case where a fire set in motion an automobile so as to make it collide. Perhaps what was meant, and it would have been clearer, is that the fire *314■was caused before the collision. The question would then be of itself so plain as to make any discussion thereon unnecessary. But this is what the policy did not mean. The meaning of the language used by the insurers is as follows: “We insure your property against collision, except in case of an ensuing fire; therefore, we will pay you damages resulting from a collision, but not damages caused by fire.” This is the literal meaning of the clause of the contract. The purpose of the clause thus established is to prevent fraud and surely this was the mental process of the parties when executing the contract. The effect of a collision generally is not the destruction of an automobile, but a fire destroys it totally. What the court has done is to modify the contract in such a manner as to impose on the company an obligation which does not belong to it — to make it liable for a fire risk without the payment on the part of the insured of any premium on that account. The clause of the contract has been disregarded and it is the imagination which has been in action by construing into .the clause a very different thing from that which the parties had in mind when contracting. See section 1250 of the Civil Code.
For the foregoing reasons I have come to the conclusion that the judgment dismissing the complaint and from which this appeal has been taken should have been affirmed.