Summary
In Commercial Cas. Ins. Co. v. Tri-State Transit Co., 190 Miss. 560, 1 So.2d 221, 223, 133 A.L.R. 1510, judgment was obtained by a passenger of appellee for injuries originating in and proximately resulting from the negligent operation of its bus.
Summary of this case from National Mut. Casualty Co. v. ClarkOpinion
No. 34483.
March 24, 1941.
1. INSURANCE.
Where liability policy covering bus imposed duty on insurer to defend any suit whether groundless or not, on account of bodily injury or death resulting from accident or alleged accident covered by policy which may have grown out of ownership, maintenance or use of bus, insurer's duty to defend action for death of bus passenger was required to be measured by allegations of the declaration in the death action.
2. INSURANCE.
Under bus liability policy which imposed duty on insurer to defend any suit, whether groundless or not, on account of bodily injury or death resulting from accident or "alleged accident," quoted words would not require insurer to defend suit brought against bus company on mere statement as a conclusion of a pleader, contained in declaration in action against company to effect that injury or death resulted from accident growing out of ownership, maintenance or use of bus, and duty of insurer to defend would depend on whether facts alleged would be sufficient to show that injury or death did in fact result from such an accident or alleged accident.
3. INSURANCE.
Under liability policy covering bus which imposed duty on insurer to defend any suit, whether groundless or not, on account of bodily injury or death resulting from accident or alleged accident covered by policy, whether an injury is "accidental" is determinable from standpoint of the injured person, and if the injury comes to him through external force, not of his choice or provocation, then as to him the injury is accidental.
4. INSURANCE.
Under liability policy covering bus which imposed duty on insurer to defend any suit, whether groundless or not, on account of death resulting from accident or alleged accident covered by policy, insurer had duty to defend suit for death of bus passenger resulting from pneumonia allegedly contracted by passenger when bus broke down, and driver failed to provide other means of transportation for passenger who was compelled to expose herself to cold and damp weather in order to get to her place of employment, since the exposure to cold and resulting pneumonia was "accidental" as to the passenger, which brought it within protection of the policy.
5. INSURANCE.
Liability insurer which wrongfully failed to defend action brought against bus company for death of passenger on bus covered by policy was liable for such sum as was expended in good faith by the company in making what it conceived to be a reasonable and advantageous compromise of claim for passenger's death and reasonable expenses incurred in investigation of facts in connection with suit and in preparation of defense thereof.
APPEAL from the circuit court of Hinds county, HON. J.P. ALEXANDER, Judge.
Jackson, Young Friend, of Jackson, for appellant.
If the injury is caused by the wilful and wanton acts of the insured, then there is no liability under a policy similar to the one involved in the case at bar.
Briggs Hotel Co. v. The Zurich General Acc. Liability Ins. Co., 213 Ill. App. 334; Commonwealth Cas. Co. v. Headers, 118 Ohio St. 429, 161 N.E. 278.
The former cases of this court state the better rule to be that the question as to whether an injury is caused by "accident," or "accidentally sustained" is to be determined from the standpoint of the injured person.
Fid. Cas. Co. v. Johnson, 72 Miss. 333, 17 So. 2; Hutson v. Continental Cas. Co., 142 Miss. 388, 107 So. 520; Great Southern Life Ins. Co. v. Campbell, 148 Miss. 173, 114 So. 262, 56 A.L.R. 681; 14 R.C.L. 1260, sec. 437; Ga. Casualty Co. v. Alden Mills, 156 Miss. 853, 127 So. 555, 73 A.L.R. 408; Robinson v. U.S.F. G. Co., 131 So. 541, 159 Miss. 14; Fox Wisconsin Corp. v. Century Ind. Co., 219 Wis. 549, 263 N.W. 567; Washington Theatre Co. v. Hartford Acc. Ind. Co., 157 A. 111, 9 N.J. Misc. 1212; Raven Halls v. U.S.F. G. Co., 142 Misc. 454, 254 N.Y.S. 589; Westerland v. Argonaut Grill (Great Am. Ind. Co. of N.Y.), (Wash.), 60 P.2d 228; E.J. Albreicht Co. v. Fid. Guar. Co. of N.Y., 289 Ill. App. 508, 7 N.E.2d 626.
When one is injured while performing an act which he intended to do, proceeding throughout the entire course of its performance in the manner intended and and without any unpremeditated deflection therefrom, the fact that the ultimate injurious result was unexpected does not make out a case of an injury accidentally suffered.
U.S.F. G. Co. v. Wilson, 184 Miss. 823, 185 So. 802; U.S. Cas. Co. of N.Y. v. Malone, 87 So. 896, 126 Miss. 73; Met. Life Ins. Co. v. Williams, 180 Miss. 894, 178 So. 477; Cornelius, Accidental Means, p. 8. Holland v. Morrison, 14 Tenn. App. 73.
There was no causal connection between the bus stopping and the death of Pinkie Laws. Her death was caused by her voluntarly action in getting off the bus and walking on to her destination. Surely the stopping of the bus, or the failure to carry Pinkie Laws to her destination was not an "accident" as that term is used in the policy of insurance. It was, at the most, only a breach of contract of carriage.
North American Acc. Ins. Co. v. Henderson, 180 Miss. 395, 177 So. 528; U.S.F. G. Co. v. Wilson, 184 Miss. 823, 185 So. 802; Chop v. Swift Co., 118 Kan. 35, 233 P. 800; Dolwin v. Austin N. Co., 211 App. Div. 295, 202 N Y Supp. 619; Utica Mut. Ins. Co. v. Hamera, 162 Misc. 169, 292 N YS. 811; Wm. E. Salomon Co. v. Globe Ind. Co. (Ill.), 19 N.E.2d 436.
The allegations of the declaration filed by Andrew Laws do not bring the action within the policy — there are no allegations of accidental injury — and under such circumstances there is no duty to defend.
The defense obligation is governed by the allegations of the suit. If the suit alleges facts which, if true, would be within the insurance afforded, then the company must defend the insured whether the allegations are unwittingly erroneous or willfully false or fraudulent.
Sawyer's "Automobile Liability Insurance, an Analysis of the National Standard Policy Provisions," p. 77; U.S.F. G. Co. v. Wilson, 184 Miss. 823, 185 So. 802.
Morse, Bacon Shands, of Jackson, for appellee.
The accident and death complained of herein was within the terms and coverage of the Commercial Casualty Insurance Company policy, indemnifying the Tri-State Transit Company.
Merchants Co. et al. v. Hartford Accident Ind. Co., 187 Miss. 301, 188 So. 571; Sawyer's "Automobile Liability Insurance, an Analysis of the National Standard Policy Provisions;" 59 C.J. 953; Tri-State Transit Co. v. Martin, 181 Miss. 388, 179 So. 349; 22 R.C.L. 123-5, 140, 150-152; Sutherland on Damages (4 Ed., 1916), Secs. 36, 38; H.P. Hood Sons v. Md. Cas. Co., 206 Mass. 223, 92 N.E. 329, 30 L.R.A. (N.S.) 1192; Christ v. Pac. Mut. Life Ins. Co., 312 Ill. 525, 144 N.E. 161, 35 A.L.R. 730; Higgins v. Midland Cas. Co., 281 Ill. 431, 118 N.E. 11; Aetna Life Ins. Co. v. Portland Gas Coke Co. (9 C.C.A.), 229 Fed. 552, 30 L.R.A. (N.S.) 1927; Moore v. Fid. Cas. Co. of N.Y. (Cal.), 265 P. 207, 56 A.L.R. 860; Owens et al. v. Ocean Acc. Guarantee Corp., 109 S.W.2d 928; Mullen v. Hartford Acc. Ind. Co. (Mass.),
191 N.E. 394; Harbor Tug Barge Co. v. Zurich General Acc. Ind. Co., 24 F. Supp. 163.
In the instant case, there is no provision that the liability of the insurer shall attach as to a strictly proximate cause.
If the bus did "break down and come to a stop," then that was an accident which started the chain of events finally resulting in the death of the said Pinkie Laws. Under the able reasoning in the Merchants Company v. Hartford Accident Indemnity Company case, supra, then the Commercial Casualty Company is liable for the wrongful death of Pinkie Laws.
There was a duty upon the Commercial Casualty Company to defend the claim herein.
I.C.R. Co. v. Harris (Miss.), 29 So. 760; Miss. Central v. Lott, 118 Miss. 816, 80 So. 277; 79 A.L.R. 351; Beauchamp v. Saginaw Min. Co., 50 Mich. 163, 45 Am. Rep. 30; Gulfport, Mobile Northan R.R. Co. v. Graham, 153 Miss. 72, 117 So. 881; Appleman on "Automobile Liability Insurance," pp. 94-99; 71 A.L.R. 1479; Rosenberg v. Md. Cas. Co. (N.J.), 130 A. 726, 43 A.L.R. 328-9; St. Louis Dressed Beef Provision Co. v. Md. Cas. Co., 201 U.S. 173, 50 L.Ed. 712; Butler Bros. v. American Fid. Co., 120 Minn. 157, 44 L.R.A. (N.S.), 609, 139 N.W. 355; Sec. 521, Code 1930; Gibson-Moore Mfg. Co. v. Meek, 71 Miss. 614, 15 So. 789; N.O., J. G.N.R.R. v. Hurst, 36 Miss. 660, 74 Am. Dec. 785; Southeastern Express Co. v. Namie, 182 Miss. 447, 181 So. 515; Miss. Law Journal, Vol. XIII, No. 2, p. 243; 96 A.L.R. 765-767.
Since the appellant herein refused to defend the claim and denied all liability under the policy they must here satisfy their solemn obligation and pay for all expenses, attorneys' fees and settlement incurred and the fortunate settlement of the claim of Andrew Laws.
Argued orally by Joe N. Friend, for appellant, and by W.A. Bacon, for appellee.
As a common carrier of passengers for hire, on December 28, 1938, the appellee, Tri-State Transit Company of Louisiana, Inc., operated an automobile bus from the City of Jackson to and from the station of Whitfield, a distance of approximately ten miles, and as such carrier it was protected by an automobile liability policy of insurance issued by the appellant, Commercial Casualty Insurance Company, whereby the said insurer agreed (1) to indemnify the insured "against loss from the liability imposed by law upon the insured arising from claims against the insured for damages caused by accidents growing out of the ownership, maintenance or use of any of the automobiles ennumerated and described . . . if such claims are made on account of bodily injury or death suffered by any person or persons . . . as the result of an accident occurring while this policy is in full force and effect . . .;" and (2) to "Defend in the name and on behalf of the insured any claim or suit, whether groundless or not, of which notices are given to the Company as hereinafter required on account of bodily injury or death . . . provided such claim results from an accident or alleged accident covered by this policy . . ."
The judgment herein appealed from is for the sum of $1,069.96 recovered by the appellee transit company against the insurer, and represents an amount paid out by the insured in compromise and settlement of a suit for damages filed against it by one Andrew Laws on account of the death of his wife Pinkie Laws, alleged to have been cause by an accident growing out of the ownership, maintenance or use of an automobile bus operated by the said transit company on the date aforesaid, and for expenses and attorneys' fees expended by the insured in connection with the defense thereof, the said amount being deemed by the insured in good faith to be a reasonable and advantageous settlement of the claim, including the expenses incurred in preparing to defend the suit, after due notice and demand upon the insurance company in that behalf and its refusal to acknowledge any responsibility in connection therewith.
It was alleged in the declaration thus filed by Andrew Laws against the appellee transit company that on the said 28th day of December, 1938, at about 6 o'clock A.M., his wife became a passenger for hire from Jackson to Whitfield, Mississippi, and that when the automobile bus on which she was riding had reached a point approximately one mile of her destination, the same "broke down and came to a stop . . ., due to the negligence of the defendant, its agents and servants;" that when the said bus stopped and could not proceed upon its journey due to mechanical or other defects, which were known to or could have been known to the defendant if the proper inspection of the bus had been made, the driver thereof announced to the plaintiff's wife and to the other passengers thereon that they "would be compelled to walk to their destination because the automobile bus had broken, become disabled and would and could go no further;" that the bus driver made no effort to provide other means of transportation for her and the other passengers to reach their destination; and that the plaintiff's wife, over her protest, "was compelled to walk for approximately one mile on that inclement, bitterly cold and damp morning . . . over the frozen ground and a plowed field in order to complete the journey, whereby she was exposed to the said inclement and bad weather, and then and there contracted a cold and pneumonia, from which she died on January 6, 1939."
The sole question for decision on this appeal is whether or not this declaration stated a case as the insurance company was obligated to defend under the contract of insurance sued on herein. That is to say, whether the facts alleged are sufficient to show, if true, that the death of Pinkie Laws resulted "from an accident or alleged accident covered by the policy," — an accident "growing out of the ownership, maintenance or use of any of the automobiles ennumerated and described" in the policy. It is immaterial that the proof made upon the trial of the present suit may have disclosed that Pinkie Laws left the bus without being required to do so either by the bus driver or the existing circumstances, since the proof in that behalf should have been presented in the defense of the suit brought by Andrew Laws against the insured. The duty of the insurer to defend that suit is to be measured by the allegations of the declaration in that case, because the policy required the insurer to defend "any claim or suit, whether groundless or not . . . on account of bodily injury or death . . . provided such claim results from an accident or alleged accident covered by the policy," which may have grown out of the ownership, maintenance or use of any of the automobiles covered therein. The term "alleged accident," as used in the policy, would not require the insurer to defend a suit brought against the insured by an injured person, or the heir-at-law of such person, upon the mere statement, as a conclusion of the pleader, contained in the declaration in such a suit to the effect that the injury or death resulted from an accident growing out of the ownership, maintenance or use of the automobile covered by the policy, but such duty of the insurer to defend is dependent upon whether the facts alleged as such are sufficient to show that the injury or death did in fact result from such an accident or alleged accident. It is by this test that we shall determine the question here involved.
Departing from the rule announced in the cases of Briggs Hotel Company v. Zurich General Accident Liability Insurance Company, 213 Ill. App. 334, and Commonwealth Casualty Company v. Headers, 118 Ohio St. 429, 161 N.E. 278, this court held in the case of Georgia Casualty Company v. Alden Mills, 156 Miss. 853, 127 So. 555, 557, 73 A.L.R. 408, citing the case of Fidelity Casualty Company v. Johnson, 72 Miss. 333, 17 So. 2, 30 L.R.A. 206, that: "Whether an injury is accidental, is to be determined from the standpoint of the person injured. If the injury comes to him through external force, not of his choice or provocation, then as to him the injury is accidental." In the Mills case, supra, it was held that one assaulted by insured's employees sustained an "accidental injury" within the meaning of a policy indemnifying the employer against loss from claims for injuries accidentally suffered by third persons.
Therefore, if it were true, as alleged by Andrew Laws in his declaration, that the bus driver made no effort when the bus broke down to provide other means of transportation for Pinkie Laws to her destination, and if it be further true that by reason of such fact she was compelled to expose herself to the cold and damp weather in order to get to her work as an employee of the State Insane Hospital at Whitfield, and that she contracted pneumonia and died as a result of this alleged intentional and wilful violation of her rights in the premises by the bus driver, as agent of the said insured carrier of passengers; then under the rule announced in the Mills case, can it be said that the action of this passenger in leaving the bus and walking to her destination, and the exposure to which she subjected herself, was through the concurrence of her own will or the result of her free and voluntary act? She was caused to walk from the scene of the accident as a direct and proximate result of the bus becoming incapacitated to proceed to its destination, due to the accident and the failure of the insured carrier to provide other transportation. Contracting the cold and resultant pneumonia from the necessary exposure to the weather was unforeseen, happened by chance, not according to the usual course of things, and was as to her accidental within the meaning of the principle announced in the Mills case, supra.
The appellant concedes that the question of whether the illness and death of the passenger in this case was caused by "accident" is to be determined from the standpoint of the passenger, and the case of Robinson et al. v. United States F. G. Company, 159 Miss. 14, 131 So. 541, is cited in its brief to show that this court has held the announcement of the law in the Mills case, supra, in that regard to be in accord with reason and authority, but it is then argued that in the case at bar the death of the passenger was caused by her own voluntary and intentional act in getting off the bus, and voluntarily exposing herself to the cold and inclement weather. This contention, however, is at variance with the allegations of the declaration in the suit which the insurer was requested by the insured to defend, as hereinbefore shown.
It may be conceded that the question here presented for decision is not without difficulty, but it was held in the recent case of Merchants Company et al. v. Hartford Accident Indemnity Company et al., 187 Miss. 301, 188 So. 571, 572, 192 So. 566, that an insurance policy, obligating an insurer to pay all sums payable by the insured as damages for accidental bodily injury to any person, arising out of the insured's ownership, maintenance or use of an automobile, does not require that the injury be the proximate result of a negligent act happening in the actual use or operation of an insured truck.
In that case, the insured truck went into a ditch on the side of a public highway, and it was necessary for the operator of the truck to use several large poles in extricating it from the ditch. When this had been done, the truck was driven away and the poles were left in the road. During the night following, the operator of a passenger automobile struck one or more of the poles and was severely injured, and recovered a judgment for damages on account thereof against the insured. Thereafter, the insured owner of the truck which had gone into the ditch sued the insurer for reimbursement. The policy sued on did not expressly require that the injury for which the insurer could be held liable should be the proximate result of the use of the automobile truck. The court held that if the policy had contained such a provision, it might be that liability against the insurer would be denied "on the ground that the proximate cause of the injury was the technically separable fact of the failure to remove the poles from the road," but, in the absence of such provision, the court followed the rule announced in the case of Panhandle Steel Products Company v. Fidelity Union Cas. Company, Tex. Civ. App., 23 S.W.2d 799, and other cases to the same effect, and held the insurer liable for the judgment against the insured on the ground that the insurance contract did not require as a condition of liability that the injury must be the proximate result, in the strict legal sense of that term, of a negligent act which happened in the actual use or operation of the truck. In the case at bar, the policy sued on is likewise silent as to whether an injury for which the insurer can be held liable must be the proximate result of the accident complained of. Here, as in the Merchants Company case, supra, the situation which rendered it necessary for Pinkie Laws to expose herself to the cold and inclement weather while necessarily walking to her destination as alleged, arose out of, or had its source in, the accident which resulted from the use or operation of the automobile bus, and the chain of circumstances while followed the stoping of the bus bore a direct or substantial relation to the accident which resulted from the use of the same, since the failure of the carrier to transport the passenger to her destination was directly and proximately connected with the incapacity of the bus to proceed further on its journey because of the accident. In the Merchants Company case, supra, the court observed that the next event which happened after the truck went into and was extricated from the ditch was the fact that the operator drove it away, leaving the poles in the road. In the case at bar, the next occurrence which happened after the bus broke down was the alleged failure of the bus driver to provide other means of transportation and his announcement that the passengers would be compelled to walk from there to their destination, since the bus could go no further because of the accident. Hence, it cannot be said that the exposure, illness and death of the passenger, Pinkie Laws, has no direct or substantial relation to the situation which arose out of the accident which resulted from the use of the automobile bus in question, unless we interpose, as a supposed independent act, the alleged attitude and announcement of the bus driver, as the proximate cause of the illness and death complained of. The court held in the Merchants Company cases, supra, that the negligent omission of the truck operator to remove the poles from the road in that case would not be interpolated as an independent proximate cause of the injury there complained of.
From the foregoing views, it follows that we are of the opinion that it was the duty of the insurer to have defended the suit filed by Andrew Laws against the insured, and that its failure to do so rendered it liable for such sum as may have been expended in good faith by the insured in making what it conceived to be a reasonable and advantageous compromise and settlement of the claim, and the reasonable expenses incurred in the investigation of the facts in connection with the suit and in the preparation of the defense thereof. There is no serious conflict in the evidence as to the reasonableness of the demand sued for, or in the decisions as to the extent of the insured's liability, provided the policy sued on herein imposed an obligation upon the insurer to defend the suit referred to. The judgment of the lower court will therefore be affirmed.
Affirmed.
Alexander, J., took no part in the decision of this case.