February 5, 1932.
Person not party to contract of insurance, but for whose protection policy provides, can stand only upon terms of contract.
2. INSURANCE. Person injured in collision between automobile and insured truck with trailer attached held not within terms of liability policy, precluding recovery thereon.
Insurance policy issued on truck and covering insured's legal liability to others contained provision that policy did not cover any obligation assumed by or imposed upon the assured while the automobiles are "being used for towing or propelling any trailer or any vehicle used as a trailer. . . ."
APPEAL from chancery court of Prentiss county. HON. J.A. FINLEY, Chancellor.
J.A. Cunningham, of Booneville, for appellant.
The appellant readily concedes that the policy provides an exception to liability when an accident happens while the truck is towing a trailer, but contends that this means nothing more than to relieve the company of liability when the injury shall in any way be contributed to by the assured's violation of the provision not to tow a trailer.
If the towing of the trailer was not the proximate cause of the accident, the defendant's demurrer should have been overruled.
Hossley v. Union Indemnity Company, 102 So. 561; 14 R.C.L. 1226; Townsend v. Commercial Traveler's Mutual Accident Association, 231 N.Y. 148, 17 A.L.R. 1001.
Watkins, Watkins Eager, of Jackson, for appellee.
The contract of insurance here sued on particularly described the motor vehicle covered thereby, and contained the express condition that no automobile covered thereby should be used for towing or propelling any trailer or any vehicle used as a trailer, and expressly provided that the policy of insurance did not cover the automobile therein described while being used for towing or propelling any trailer or any vehicle used as a trailer, and by means of an asserted waiver it is now attempted to write a new contract between the parties and extend the indemnity of the contract to cover a vehicle not covered by the original contract. There is not here involved merely a forfeiture condition or provision of the policy contract, which it is sought to avoid by reason of the acts of an agent of the insurance company constituting a waiver thereof, but it here sought to make, by waiver, a contract for the parties which they never made themselves, and by waiver to extend the contract to cover vehicles not covered thereby, and which the insurance company expressly refused to insure, and this result cannot be accomplished by means of any alleged waiver growing out of the acts of the agent of the company.
Maryland Casualty Co. v. Adams, 159 Miss. 95, 96; Massie v. Washington Fidelity National Insurance Co., 153 Miss. 436, 121 So. 125; Miss. Electric Co. v. Hartford Fire Insurance Co., 105 Miss. 768, 63 So. 231.
Adams, not being a party to the contract, is limited to the express provisions of the policy of equity on the application of one of the parties to the contract. Surely a mere third party cannot be heard to rely on an alleged waiver or estoppel when he was no party to the contract.
It is well settled, however, that where the terms of a policy are unambiguous the court will give effect to them where not prohibited by law, and that the court will not undertake to rewrite or change a policy the parties themselves have made, so as to protect one of the parties to the contract from his own improvidence or imprudence or neglect.
Jackson Steam Laundry v. Aetna Casualty Surety Co., 156 Miss. 653, 126 So. 478.
On May 16, 1929, one F.A. Falls procured a casualty insurance policy from the Maryland Casualty Company upon a truck against liability for accidents and injuries to himself and to third persons. This truck was being operated upon a highway with a trailer attached, and collided with a car, owned and being operated by the father of the appellant, inflicting serious injuries upon the appellant, R.B. Adams, minor, and hence this suit was brought. In a suit brought by Curtis E. Adams, who was injured in the same accident, controlled by the same facts, and reported in Maryland Casualty Co. v. Adams, 159 Miss. 88, 131 So. 544, a demurrer was sustained to the declaration holding that there was no liability against the casualty company. Judgment had been obtained against Falls for the injury, and the suit at bar and its companion suit in 159 Miss. supra, were brought against the Casualty Company to recover on the policy issued to Falls.
In the present case, it was sought to amend the declaration so as to change some averments in the declaration which was originally identical with the one in the Curtis E. Adams case, supra. In that case it was averred that the truck was engaged at the time of the accident in hauling logs with a trailer attached, and that such operation was the approximate cause of the injury. In the present case, it was stated that the truck was not loaded with logs, but was on a return trip from the place of unloading logs back to the woods to be reloaded. The trailer was attached to the truck, but it was averred in this declaration that there was no causal connection between the attachment of the trailer to the truck and the injury to the appellant for the collision occurred between the front part of the truck and the front part of the car wrecked by the collision, and that the truck was being operated upon the wrong side of the road and struck the car with such violence and force as to knock the car out of the road without creating any slack between the trailer and the truck.
The policy involved, among other things, under the head of "Legal Liability for Damages to Property of Others," provides, as follows: "Against loss from liability imposed by law upon the assured for damage (including as a part thereof loss necessarily resulting from loss of use) to property of every description (excluding property of the assured and/or property in the custody of the assured and/or property rented or leased by the assured and/or property carried in or upon any automobile of the assured, or in or upon any automobile in the custody of the assured), . . . provided that the Company's liability for such property damage shall in no event exceed the amount set forth in Clause B of Item 3 of the statements on account of any one accident. And said limit shall apply to each automobile covered hereunder. 11. The insurance provided by this Policy is hereby made available, in the same manner and under the same conditions as it is available to the named assured, to any person operating and/or to any other person while riding in, and/or to any other person, firm or corporation legally responsible for the operation of, any of the automobiles described in the statements, provided the use and operation thereof are lawful and with the permission of the named assured." In paragraph 5 of this clause, it is provided that: "This policy does not cover (1) any obligation assumed by or imposed upon the assured by any Workmen's Compensation Law, agreement or plan, unless specifically endorsed hereon, . . . while said automobiles are (d) being used for towing or propelling any trailer or any vehicle used as a trailer, (incidental assistance to a stranded automobile on the road permitted) . . . unless such trailer is listed in the statements set forth. . . . Nor in any event unless proper premium for such privilege is in the statements set forth."
It will be seen from an analysis of the provisions of the policy that the insurance company did not assume to insure the risk caused by the operation of the truck with the trailer attached unless it was permitted by notation on the policy and the proper charges made for such coverage.
We do not see how the averments set forth in this declaration aid the plaintiff in the suit, because the casualty company did not assume to insure against injuries in the operation of the truck with the trailer attached.
It was permissible for it to make the contract specifying the particulars in such policy that would afford indemnity to the insured. The plaintiff does not bring himself within the terms of the policy, and, as we understand it, one who is not a party to a contract, but for whose protection a policy provides, can stand only upon the terms of the contract, and if he does not bring himself within the terms of the contract, there is no liability in his favor.
The appellant cites and relies upon the case of Hossley v. Union Indemnity Co., 137 Miss. 537, 102 So. 561, but we do not think that case is applicable here. On the facts of that case, we think it is perfectly sound. There the injury was not occasioned by the operation of a car by the plaintiff, but was occasioned by the negligence of the opposite party doing an affirmative negligent act.
The court below having sustained the demurrer to the bill, which holding is in conformity with the present opinion, and with the case of Adams v. Maryland Casualty Co., supra, the judgment will be affirmed.