Summary
holding that injuries arose out of the ownership, maintenance or use of automobile where motorist's car struck poles that another driver had left lying in the roadway after using them to extricate his truck from a roadside ditch hours earlier
Summary of this case from Emcasco Ins. v. Am. Intern. Specialty LinesOpinion
No. 33701.
May 15, 1939. Suggestion of Error Overruled January 2, 1940.
1. INSURANCE.
An insurance policy, obligating insurer to pay all sums payable by insured as damages for accidental bodily injury to any person, arising out of insured's ownership, maintenance, or use of automobile, does not require that injury be proximate result, in strict legal sense, of negligent act happening in actual use or operation of insured truck, but liability thereunder does not extend to something distinctly remote, though within line of causation.
2. INSURANCE.
Where dangerous situation causing injury arose out of use or operation of automobile covered by liability policy, chain of responsibility must be deemed to possess requisite articulation with such use or operation until broken by intervention of event not directly or substantially related thereto.
3. INSURANCE.
The Supreme Court cannot rewrite automobile liability insurance contract by interpolating provision that insurer's liability shall follow only as to strictly proximate cause of injury to third person.
4. INSURANCE.
Under automobile liability policy obligating insurer to pay all sums payable by insured by reason of liability for damages because of bodily injury caused by accident arising out of ownership, maintenance, and use of automobile, insurer held liable for amount of judgment against insured for injuries to traveler in automobile striking pole left in road by operator of insured truck after using it in extricating truck from ditch.
APPEAL from the chancery court of Forrest county; HON. BEN STEVENS, Chancellor.
Watkins Eager, of Jackson, for appellants, Saint Paul Mercury Indemnity Company.
The sole issue, as we see it, is whether or not said accident arose out of the ownership, maintenance or use of the truck which became stuck. If it did, the ruling of the lower court was correct. If the accident did not arise out of the ownership, maintenance, or use of the automobile the lower court should have sustained the general demurrer of the Saint Paul Company and overruled the general demurrer of the Hartford Company.
Insofar as we can determine this is a question of first impression in this State. We submit, however, that although the question has not been raised on numerous occasions there is a definite and well recognized line of authorities which hold that such an accident is covered by the public liability policy rather than by the automobile liability policy.
Caron v. American Motorists' Ins. Co. (Mass.), 178 N.E. 286; Luchte v. State Automobile Mutual Ins. Co. (Ohio), 197 N.E. 421; Steir v. London Guaranty Accident Co., 237 N.Y.S. 40.
There can be liability imposed upon a policy of automobile liability insurance if the accident arises directly out of the use of this extraneous object with the automobile. Where, however, the act of negligence which causes the injury is independent of the use of the object with the automobile the accident cannot be said to have arisen out of the use of the object with the automobile. This case presents a typical example. The poles were temporarily used with the automobile to get it out of the mud. After the truck was out and after all use of the poles with the truck had been completed, assured committed a negligent act in failing to remove the poles from the road. This negligent act, in failing to remove the poles from the road after their use with the automobile had ceased, and not their use with the automobile, caused an injury to a traveler on the highway twelve hours later.
Mullen v. Hartford Acc. Ind. Co. (Mass.), 191 N.E. 394; U.S.F. G. Co. v. Breslin (Ky.), 49 S.W.2d 1011; Stammer v. Kitzmiller (Wis.), 276 N.W. 631; Philadelphia Stockyard Co. v. Maryland Casualty Co., 100 Pa. Sup. Ct. 459.
In the case of John Alt Furniture Company v. Maryland Casualty Company, C.C.A. 8th, 88 F.2d 36, it appeared that the assured furniture company had a general public liability insurance policy with Maryland Casualty Company; that it had an automobile liability policy covering its trucks with the Saint Paul Mercury Indemnity Company; that the provisions of the policy were substantially the same as those now before the court; that the assured went to deliver certain furniture to an address in St. Louis, Mo., and when the assured's truck loaded with the furniture reached its destination, and in order to take the furniture from the truck into the house, it first became necessary to remove a door, which assured leaned against a clothes line. This door subsequently fell and injured a party, who secured a judgment against the assured furniture company. The Circuit Court of Appeals for the 8th Circuit held that this accident came within the coverage of the general public liability policy.
If it can be said that there is liability under the automobile liability policy in this case, the coverage for accidents arising out of the ownership, maintenance, or use of an automobile will have been extended by this court to include any extraneous object temporarily used with the automobile for an indefinite length of time after its use with the automobile has terminated.
We most respectfully and earnestly submit that an accident does not arise out of the ownership, maintenance or use of an automobile and is covered by the terms of the general liability policy where an extraneous object is temporarily used with the automobile and where the negligence which caused the injury occurs after its use with the automobile has ceased and where the injury occurs twelve hours or an appreciable length of time after its use with the automobile has ceased.
Green, Green Jackson, of Jackson, for appellant, The Merchants Company.
The position of The Merchants Company, as shown by its bill of complaint, and as indicated by its assignment of errors herein is that either the Saint Paul Mercury Indemnity Company or the Hartford Accident Indemnity Company is liable to it for the Fifteen Hundred Dollars paid in settlement of the suit of A. Hardin Grubbs against it in Simpson County, Mississippi, on the agreement and stipulation.
It is immaterial which of the defendants is held liable to The Merchants Company, and in order to fully protect its rights, it was deemed advisable for The Merchants Company to file separate appeal as to the dismissal of the Hartford Accident Indemnity Company, and as to the insurance agents, defendants. It is understood that the Saint Paul Mercury Indemnity Company will take the laboring oar as far as its liability is concerned, and that the Hartford will likewise assume the burden insofar as its liability is concerned. One or the other must be liable. The accident resulting in injuries to A. Hardin Grubbs arose either out of the "ownership, maintenance and use of the automobile" under the policy issued by the Saint Paul Mercury Indemnity Company, or it arose out of the public liability for the negligence of the servants of The Merchants Company under the policy issued by the Hartford Accident Indemnity Company. Both companies denied that either was liable and assumed that the other had the liability. Hence the litigation.
We submit, therefore, that the chancellor was correct in determining that the Saint Paul Mercury Indemnity Company was liable to The Merchants Company for the Fifteen Hundred Dollars, and if he was in error in that instance, then, certainly he was in error in holding that the Hartford Accident Indemnity Company was not liable.
Hannah, Simrall Foote, of Hattiesburg, for appellee.
The accident arose out of ownership, maintenance, or use of truck.
It is respectfully submitted that the accident in question falls within the coverage of the St. Paul Company's policy, one of the insuring agreements of this policy being "To pay on behalf of the assured all sums which the assured shall become obligated to pay by reason of the liability imposed upon him by law for damages, . . . sustained by any person or persons, caused by accident and arising out of the ownership, maintenance or use of the automobile."
Liberty Mut. Ins. Co. v. McDonald (1938), 97 F.2d 497; Mullen v. Hartford Acc. Ind. Co. (Mass., 1934), 191 N.E. 394.
In order for this accident to arise out of the ownership, maintenance or use of the Merchants Company's truck and to fall within the coverage of the St. Paul Company's policy, it is not necessary that the ownership, maintenance, or use of the truck be the proximate cause of the injury. The language of the St. Paul Company's policy is very broad and does not cover accidents "proximately caused by" nor even "caused by" the ownership, etc., of the assured's truck. The St. Paul Company's policy is not confined to such narrow limits of liability. On the other hand, the St. Paul Company's policy covers the very broad field of accidents "arising out of" the ownership, maintenance or use of the assured's truck. If the St. Paul Company had wished to restrict its coverage to accidents proximately or directly caused by the ownership, maintenance or use of the assured's truck, it should have so written the policy.
Panhandle Steel Products Co. v. Fidelity Union Casualty Co. (Tex.), 23 S.W.2d 799; Luchte v. State Automobile Mut. Ins. Co. (Ohio), 197 N.E. 421, 423; Liberty Mut. Ins. Co. v. McDonald, 97 F.2d 497; Lang v. Jersey Gold Creameries, Inc. (La.), 172 So. 389.
Argued orally by Forrest B. Jackson, for appellant, The Merchants Co., by Tom Watkins, for appellant, St. Paul Mercury Indemnity Co., and by L.Y. Foote, for Hartford Accident Indemnity Company.
The Merchants Company, a wholesale distributor, used a number of automobile trucks in making deliveries to retail customers. While so engaged, one of its trucks went into a roadside ditch of a public highway, and it was necessary to use several large poles in extricating the truck. When this had been done, the operator of the truck drove it away, leaving the poles in the road. That night Grubbs, a traveller in a passenger automobile, struck one or more of the poles and was severely injured, for which he recovered judgment against the Merchants Company.
The mercantile company carried two policies of liability insurance, one a general liability policy in the Hartford Company, and the other, an automobile liability policy on the particular truck in the St. Paul Mercury Indemnity Company. By its policy the latter company agreed: "To pay on behalf of the Insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages . . . because of bodily injury . . . sustained by any person or persons, caused by accident and arising out of the ownership, maintenance or use of the automobile."
All the parties have conceded that if there be liability to the insured by the St. Paul Company, under the quoted provisions, there is no liability under the general policy carried in the Hartford Company. The first question, therefore, is whether there is liability to the insured under the quoted St. Paul Company policy.
It is apparent upon the statement of the facts that the question is not free of difficulty; its decision, one way or the other, must stand on narrow ground. The parties have cited the following cases: Caron v. American Motorists' Ins. Co., 277 Mass. 156, 178 N.E. 286; Luchte v. State Automobile Mut. Ins. Co., 50 Ohio App. 5, 197 N.E. 421; Steir v. London Guar. Acc. Co., 227 App. Div. 37, 237 N.Y.S. 40, affirmed 254 N.Y. 576, 173 N.E. 873; Mullen v. Hartford Acc. Ind. Co., 287 Mass. 262, 191 N.E. 394; United States Fid. Guar. Co. v. Breslin, 243 Ky. 734, 49 S.W.2d 1011; Stammer v. Kitzmiller, 226 Wis. 348, 276 N.W. 629; John Alt Furniture Co. v. Maryland Cas. Co., 8 Cir., 88 F.2d 36; Liberty Mut. Ins. Co. v. McDonald, 6 Cir., 97 F.2d 497; Panhandle Steel Products Co. v. Fidelity Union Cas. Co., Tex. Civ. App., 23 S.W.2d 799; Lang v. Jersey Gold Creameries, Inc. (La. App.), 172 So. 389; United Mut. Fire Ins. Co. v. Jamestown Mut. Ins. Co., 242 App. Div. 420, 275 N.Y.S. 47. None of these are precisely in point, but they seem the nearest which the diligence of counsel has been able to bring to our attention.
In examining the cited cases, it will be observed that some of them proceed as if the automobile liability policy had expressly required that the injury for which the insurer could be held must be the proximate result of the use of the automobile truck. And if the policy here before us contained that express language, it might be that liability under the St. Paul Company policy in the present case 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 we are in accord with the ruling expressed in Panhandle Steel Products Co. v. Fidelity Union Cas. Co., supra, and other cases to the same effect, that an insurance contract such as we have here does not require 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; and, on the other hand, we would not assent to a contention that the policy liability would extend to something distinctly remote, although within the line of causation.
Our conclusion, under a policy such as is here before us, is that where a dangerous situation causing injury is one which arose out of or had its source in, the use or operation of the automobile, the chain of responsibility must be deemed to possess the requisite articulation with the use or operation until broken by the intervention of some event which has no direct or substantial relation to the use or operation, — which is to say, that the event which breaks the chain, and which, therefore, would exclude liability under the automobile policy, must be an event which bears no direct or substantial relation to the use or operation; and until an event of the latter nature transpires the liability under the policy exists.
Certainly the use of the poles to extricate the truck from the roadside ditch was an event which arose out of, transpired in, and was necessary to, the operation of the truck. The use of the poles in extricating the truck was a part and parcel of the operation of the truck. The next event which happened was that the truck drove away, leaving the poles in the road, but the poles were not left until the moment when the truck drove away. There was no intervention of something which had no direct or substantial relation to the use or operation.
The use of the poles in extricating the truck and thence the driving away and leaving the poles in the road thus had such a direct and substantial relation or connection in point of actual fact as respects the use and operation of the truck that in order to separate that use or break its continuity, we must interpose or insert, not an independent act, there being none such, but the negligent omission to remove the poles from the road, which, if allowed, would be to insert or interpolate into the constrictly proximate cause; and, under familiar rules, we tract a provision that liability shall follow only as to a cannot rewrite the insurance contract by interpolating that provision therein.
We are of the opinion that the St. Paul Company is liable under its contract to the insured; and this renders it unnecessary to discuss the other questions argued. The appeal is from an interlocutory decree, hence the order here will be
Affirmed and remanded.
ON SUGGESTION OF ERROR.
On consideration of the suggestion of error it was decided to set aside the former judgment and to refer the appeal to the full Court. The entire question has now been re-examined, with the result that the opinion by Division A, reported in Miss., 188 So. 571, is approved, and the former judgment is reinstated.
Suggestion of error overruled.
McGowen, J., and Smith, C.J., dubitante.